Cities Can Prepare for Hurricane Season by Reforming Laws As Atlantic hurricane season opens on June 1, eastern U.S. cities can prepare by updating laws, codes and ordinances.

By The Conversation | Contributor May 31, 2016, at 10:25 a.m.

Cities Can Prepare for Hurricane Season by Reforming Laws

Hurricanes are coming. Alexander Gerst/ESA/NASA

By John Travis Marshall

The 2016 Atlantic hurricane season begins on June 1, and the public awareness campaign is fueling speculation. How many “named” storms will there be before the season ends on November 1? Will any of them strike the United States? If they do, how strong might those storms be?

This annual hype produces more angst than answers. On the one hand, experts predict that this season will bring more tropical storms than the average year. On the other, these same experts concur that it is impossible to know whether any of the storms will make a United States landfall.

Nonetheless, U.S. cities need to prepare for storm season. And in doing so, they should think beyond winds, waves and storm surges.

Severe storms can alter cities' physical landscapes and shut down vital systems like roads and utilities. They also expose ways in which a city functions poorly, including whether it is supported by weak legal and regulatory frameworks. One important step cities can take to prepare for future storms is to identify laws or legal vulnerabilities that impede post-storm recovery. Deficient compliance with existing law, or code provisions that do not reflect current storm threats, can seriously hinder rebuilding efforts after disasters strike.

Weak Recoveries Can Cause as Much Suffering as Storms

Hurricane experts properly remind families and businesses to prepare for storms by developing evacuation plans and double-checking their insurance coverage – especially flood coverage, which is not included in typical homeowner’s policies.

But local leaders in vulnerable regions often miss a critical point. Citizens may suffer more misery during an extended, poorly managed rebuilding effort than from a hurricane’s high winds, heavy rains and pounding surf.

Neighborhood revitalization programs that move slowly may prevent families from moving home. Twenty-two months after Hurricane Katrina struck the Gulf Coast in 2005, New Orleans was still waiting for federal funds to promote neighborhood recovery. Twenty-one months after Superstorm Sandy battered the mid-Atlantic coast in 2012, 20,000 New York City homeowners were waiting for funding to help rebuild their homes.

These delays have profound consequences. Elderly and low- and moderate-income families who do not have homeowner’s or flood insurance or significant savings have minimal reserves to travel back home after evacuations. Frequently they never return, remaining instead with relatives or friends in another city.

Extended displacement also means that long after a disaster, empty homes remain boarded or, worse, unsecured. New and returning local businesses cannot afford to open their doors when neighborhoods remain dark.

Laws Guide Storm Recovery

As government officials and scholars note, laws are critical instruments that can bolster or hamper communities' resilience against natural disasters. Prior to storms, laws guide hazard

mitigation efforts by setting development standards to minimize loss of life or property in the event of a future disaster. Laws also define the range of options for rebuilding cities and regions.

However, many relevant state constitutional provisions, local ordinances and federal laws were adopted before hazard mitigation, climate change and sea level rise were part of politicians' lexicons. And some newer laws have been conceived narrowly, without considering disaster risk reduction or recovery. These laws can make it hard to restore businesses, families, schools and hospitals after disasters strike.

Cities rebuilding from hurricanes need large infusions of federal grant money to purchase storm-damaged homes or help rebuild them. But these funds must be spent in strict compliance with a thicket of federal laws and regulations. Cities that fail to follow regulations may lose federal funds for locally administered recovery projects.

One notable example is the Stafford Act, which was amended and improved immediately following Sandy. Problematic execution of the National Environmental Policy Act caused delays in New Orleans' post-Katrina neighborhood recovery.

State constitutions, statutes and city ordinances also can obstruct post-storm housing and community development projects. Examples include:

In short, every city hall that could potentially be hit by a tropical storm should examine local ordinances and state and federal laws for requirements that could impede disaster recovery. City leaders should also look for opportunities to develop ordinances that will speed recovery.

In “How Cities Will Save the World,” Albany Law School Professor Ray Brescia and I examine a range of pressing concerns for U.S. cities, including becoming more resilient to disasters. In our view, creative problem solving flourishes in cities out of necessity. Many local officials are developing innovative approaches to disaster recovery and mitigation where existing laws have provided little guidance. Examples include relocating residents from vulnerable neighborhoods and developing historic resource preservation programs for coastal cities.

The American Planning Association (APA) also has identified multiple ways in which cities can prepare ahead to improve post-storm recovery. APA emphasizes the importance of mitigation – steps such as updating building codes to reflect new flood projections. The APA also urges cities to lay the legal groundwork for recovery by adopting ordinances that will prepare them for managing the recovery process. A core theme tying the APA’s research together is that communities confronted with disaster must strategize about how they’re going to bounce back – or better yet, bounce forward – from storms and other natural hazards.

In the past decade major storms have devastated U.S. coastal cities from Galveston to Atlantic City and New York. They also have ravaged inland capitals, including Baton Rouge, Richmond and Montpelier. Ensuring that our cities have the legal infrastructure in place to build safer, more

efficient, and more equitable neighborhoods and communities after storms is just as important as preparing homes and businesses to ride out those storms.

This article was written by John Travis Marshall, assistant professor of law, Georgia State University, for The Conversation. Edward A. Thomas, Esq., president, Natural Hazard Mitigation Association, and member of the Advisory Committee of the Natural Hazards Center of the University of Colorado, contributed to this article. It has been republished here with permission.

A Three-Legged Stool on Two Legs:Recent Federal Law Related to LocalClimate Resilience Planning and Zoning

Sarah Adams-Schoen and Edward Thomas*

I. Introduction

NOTWITHSTANDING A CRITICAL GAP BETWEEN CLIMATE CHANGE related risksand preparedness in the United States, Congress has yet to pass anyfederal law expressly addressing climate change hazard mitigation(or any other aspect of climate change) and appears unlikely to doso anytime soon.1 Despite this, the first half of 2015 has seen a num-ber of actions in the other two branches of the federal governmentwith significant implications for local hazard mitigation planning,zoning, and development.2 Of particular note, and as discussed inmore detail below, the President issued an Executive Order and the

* Sarah J. Adams-Schoen and Edward A. Thomas Esq. serve on the Hazard Miti-gation and Land Use Subcommittee of the American Bar Association State andLocal Government Law section (ABA SLG). Adams-Schoen is an Assistant Professorof Law at Touro College Jacob D. Fuchsberg Law Center and Director of Touro Law’sLand Use & Sustainable Development Law Institute. Thomas is an Attorney in privatepractice and President of the Natural Hazard Mitigation Association. The authorsthank Lynsey R. Johnson, Presidential Management Fellow at the U.S. Departmentof Housing and Urban Development (HUD), for her contribution to the discussionof the U.S. Department of Housing and Urban Development (HUD) resilience initia-tives discussed in Part III.D. infra and Thomas Ruppert, Coastal Planning Specialist,Florida Sea Grant College Program, for his thoughtful comments on a preliminarydraft of the article. This article builds upon a presentation that Adams-Schoen deliv-ered at the 2015 ABA Section of State and Local Government Law spring meeting.

1. But see FEMA Disaster Assistance Reform Act of 2015, H.R. 1471, 114th Cong.§ 1 (March 19, 2015) (proposed legislation that would amend the Stafford Act, 42 U.S.C.§§ 5121-5207), available at http://transportation.house.gov/UploadedFiles/HR1471.pdf(proposed legislation that would amend the Stafford Act, 42 U.S.C. §§ 5121-5207).For more information see http://www.hlswatch.com/2015/03/23/leaning-towards-stafford-2-0-the-fema-disaster-assistance-reform-act-of-2015-h-r-1471-2/.

2. The IPCC defines “adaptation” as “the adjustment in natural or human systemsin response to actual or expected climatic stimuli or their effects, which moderatesharm or exploits beneficial opportunities.” IPCC defines “mitigation” as “anthropo-genic intervention to reduce the sources or enhance the sinks of greenhouse gases.”IPCC, CLIMATE CHANGE 2007: IMPACTS, ADAPTATION AND VULNERABILITY 6 (2007) [here-inafter AR4 WGII], available at http://www.ipcc.ch/publications_and_data/publications_ipcc_fourth_assessment_report_wg2_report_impacts_adaptation_and_vulnerability.htm.

525

Federal Emergency Management Agency (FEMA) issued draft guide-lines that have the potential to affect many state and local actions by,among other things, expanding the federal floodplain boundary.3 In anapparent shot across the bow to states that are, at best, failing to acknowl-edge climate change related hazards, and, at worst, erecting obstacles toclimate change hazard mitigation,4 FEMA also issued guidelines thatcould, in effect, force state governments to plan for climate change orrisk losing federal disaster funding.5 The White House Council on Envi-ronmental Quality (CEQ) issued new draft guidance that advises federalagencies to consider the effects of federal actions on climate change andthe effects of climate change on federal actions. The CEQ draft guidanceappears to have been issued in response to, among other things, criticismthat the federal government is providing insufficient support to local de-cision makers who are primarily responsible for the planning and devel-opment of the nation’s infrastructure.6 The Department of Housing andUrban Development (HUD) continues to provide incentives for state andlocal climate resilience initiatives in the form of grant money and, morerecently, a competition.7 And, on May 1, 2015, nearly ten years after thecatastrophic flooding of New Orleans from Hurricane Katrina, the Courtof Federal Claims issued an opinion that increases the specter of munic-ipal liability for failure to mitigate climate change related hazards.8

II. The Role of State and Local Governments in Closing

a Troubling Preparedness Gap

Global temperatures are increasing and the rate of increase is accelerat-ing, with corresponding increases in sea levels, acidification of oceans,and losses of flood-mitigating wetlands. Storms and other extremeweather events are increasing in frequency and severity.9 Indeed, many

3. See infra Part III.A.4. See, e.g., Tristram Korten, In Florida, Officials Ban Term ‘Climate Change,’ FL.

CTR. FOR INVESTIGATIVE REPORTING, http://fcir.org/2015/03/08/in-florida-officials-ban-term-climate-change/ (Mar. 8, 2015) (discussing unwritten Florida policy prohibitingstate officials from using the term “climate change” or “global warming” in officialcommunications, emails, or reports).

5. See infra Part III.B.6. See infra Part III.C. CEQ, which was established by the National Environmental

Policy Act of 1969 (NEPA), oversees implementation of NEPA.7. See infra Part III.D.8. See infra Part III.E.9. See INTERNATIONAL PANEL ON CLIMATE CHANGE (IPCC), CLIMATE CHANGE 2014: IM-

PACTS, ADAPTATION, AND VULNERABILITY: SUMMARY FOR POLICYMAKERS 6 (2014), avail-able at http://ipcc-wg2.gov/AR5/images/uploads/WG2AR5_SPM_FINAL.pdf[hereinafter AR5 WGII SPM] (identifying a laundry list of “impacts” consistentwith the current gap between vulnerability and local preparedness including “heat

526 The Urban Lawyer Vol. 47, No. 3 Summer 2015

communities are already experiencing climate change related threats, in-cluding eroding shores, more massive storm surges, more severe storms,salt water intrusion, loss of land, heat waves, droughts, and other extremeweather conditions.10 As Strauss et al. of Climate Central observe withrespect to the New York City metropolitan area:

[E]very coastal flood today is already wider, deeper and more damaging because ofthe roughly 8 inches (IPCC 2013) of warming-driven global sea level rise that hastaken place since 1900. [Climate Central’s 2014] analysis finds that this rise has al-ready increased the annual chance of extreme coastal floods in New York City by50%. Looking forward under a fast sea level rise scenario, [Climate Central] com-pute[s] a 3-in-4 chance of historically unprecedented coastal flooding in New YorkCity by 2100—or a 1-in-10 chance under a slow rise scenario.11

Moreover, although mitigation measures can decrease the rate and se-verity of climate change by limiting the amount of greenhouse gas emis-sions and increasing carbon sinks,12 such measures are only part of thesolution.13 “Much of the change in climate over the next 30 to 40 yearsis already determined by past and present emissions.”14 Additionally,current and near-future risks from climate change already pose signifi-cant enough threats that communities must undertake robust adaptationinitiatives to protect public health, property, and infrastructure.15 More-over, even if every country that has made commitments to reduce its

waves, droughts, floods, cyclones, and wildfires, . . . disruption of food production andwater supply, damage to infrastructure and settlements, morbidity and mortality, andconsequences for mental health and human well-being” and noting that “[f]or coun-tries at all levels of development, these impacts are consistent with a significantlack of preparedness for current climate variability in some sectors”).

10. See, e.g., BEN STRAUSS ET AL., NEW YORK AND THE SURGING SEA: A VULNERABILITY

ASSESSMENT WITH PROJECTIONS FOR SEA LEVEL RISE AND COASTAL FLOOD RISK, CLIMATE

CENTRAL RESEARCH REPORT 11 (2014), available at http://sealevel.climatecentral.org/uploads/ssrf/NY-Report.pdf. See also Endangerment and Cause or ContributeFindings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, 74 F.R.66496, 66497–98 (Dec. 15, 2009) (finding that the changes in climate caused byincreased concentrations of atmospheric greenhouse gas emissions endanger publichealth and welfare and specifically that “public health is expected to be adverselyaffected by an increase in the severity of coastal storm events due to rising sea levels”).

11. Strauss, supra note 10, at 11.12. See Robert J. Carpenter, Implementation of Biological Sequestration Offsets in

A Carbon Reduction Policy: Answers to Key Questions for A Successful Domestic Off-set Program, 31 ENERGY L.J. 157, 159 (2010) (defining “carbon sinks” as “an ecosys-tem’s natural absorption and storage of atmospheric carbon, primarily throughphotosynthesis”).

13. IPCC defines “mitigation” as “anthropogenic intervention to reduce the sourcesor enhance the sinks of greenhouse gases.” See AR4 WGII, supra note 2, at 750.

14. SCOTTISH EXECUTIVE, CHANGING OUR WAYS: SCOTLAND’S CLIMATE CHANGE PRO-GRAMME 75 (2006), http://www.gov.scot/Resource/Doc/100896/0024396.pdf.

15. See generally Strauss et al., supra note 10, at 12 (describing the timeline ofgrowing risks in the context of rising sea levels).

Climate Resilience Planning 527

carbon emissions achieved its targets, an assumption that does not re-flect historic performance, global temperatures are projected to never-theless increase more than two degrees Celsius over preindustrial levels,the threshold commonly accepted as necessary to prevent the cata-strophic effects of climate change.16 Accordingly, any notion that mit-igation alone will protect communities from the threats of climatechange is unfortunately nothing more than wishful thinking. Robust ad-aptation is clearly needed in addition to vigorous mitigation.17

In the United States, municipal governments have made significantcontributions to adaptation planning and implementation, at least ascompared to the federal and state governments, and many sourceslaud the extensive work of local governments with respect to adapta-tion.18 Indeed, municipal regulation of the form and placement ofbuilding stock in particular offers an opportunity to create more resil-ient infrastructure and patterns of development.19 Because we can an-ticipate the addition of substantial new building stock and infrastruc-ture over the next few decades, local governments that regulate the

16. At the 2013 Conference of Parties (COP19) in Warsaw, recognizing this “am-bition gap,” the parties agreed that global GHG emissions need to peak this decade,and get to zero net emissions by the second half of this century. Similarly, both theUNEP and IEA have been urging since 2010 that to have a reasonable chance of stay-ing within the 2˚C pathway, countries must make vigorous efforts to cut their GHGemissions by the year 2020, with even stronger action thereafter. See INTERNATIONALENERGY AGENCY, WORLD ENERGY OUTLOOK 2010 EXECUTIVE SUMMARY 3 (2010); UNITED

NATIONS ENVIRONMENT PROGRAMME, THE EMISSIONS GAP REPORT: ARE THE COPENHAGEN

ACCORD PLEDGES SUFFICIENT TO LIMIT GLOBAL WARMING TO 2˚C OR 1.5˚C? A PRELIMI-

NARY ASSESSMENT 2 (November 2010).17. Indeed, the latest IPCC assessment report projections indicate neither mitiga-

tion nor adaptation alone will be enough to maintain resilient communities. SeeAR5 WGII SPM, supra note 9, at 23 (table depicting projection that even highlyadapted North American communities will face medium to high risks under scenariosof global mean temperature increases at 2˚C and 4˚C above preindustrial levels). Seealso Sarah J. Adams-Schoen, Sink or Swim: In Search of a Model for Coastal CityClimate Resilience, 40 COLUMBIA J. ENVTL. L.—(forthcoming 2015) (concluding that“failure to promptly and aggressively mitigate climate change will likely significantlydiminish the ability of coastal communities to moderate harms like flooding and fore-close opportunities to do so in the future” and citing sources (footnotes omitted)).

18. See, e.g., IPCC, CLIMATE CHANGE 2014 SYNTHESIS REPORT 107 (2015) (“There isa significant increase in the number of planned adaptation responses at the local levelin rural and urban communities of developed and developing countries since theAR4.”), available at http://www.ipcc.ch/report/ar5/syr/.

19. Patricia Salkin, Sustainability at the Edge: The Opportunity and Responsibilityof Local Governments to Most Effectively Plan for Natural Disaster Mitigation, 38ENVT’L L.R. 10158, 10162-69 ( July 8, 2008), available at SSRN: http://ssrn.com/abstract=1157153 (discussing sustainability tools in local government toolbox). Seealso John R. Nolon, Disaster Mitigation Through Land Use Strategies, 23 PACE

ENVTL. L. REV. 959, 976–77 (2006) (“Local land use authority is the foundation ofthe planning that determines how communities and natural resources are developedand preserved, and how disaster resilient communities are created”).

528 The Urban Lawyer Vol. 47, No. 3 Summer 2015

placement and, in some respects, design aspects of building stock cer-tainly have an opportunity to avoid locking in infrastructure that in-creases flood and other climate-related risks.20

However, a troubling gap still exists between climate-related vul-nerabilities and local preparedness. With respect to climate adaptationplanning, U.S. municipalities lag behind their counterparts throughoutthe world.21 According to a survey administered by ICLEI in 2011, theUnited States has the lowest percentage of cities pursuing adaptationplanning out of all regions surveyed (59%), while Latin Americanand Canadian cities have the highest (95% and 92% respectively),22

and only 13% of the U.S. cities surveyed had even completed an as-sessment of their vulnerabilities and risks, the lowest percentage ofall regions surveyed.23 Similarly, in November 2014, the President’sState, Local, and Tribal Leaders Task Force concluded that

Many communities [in the United States] have not yet calculated and evaluatedrisks associated with climate change for infrastructure, public health and safety,or built and natural environments. Insufficient or inaccurate data stymie hazardevaluation and sound mitigation plan development. In particular, out-of-date or in-accurate flood hazard maps impede the efforts of communities to understand andassess vulnerability to sea level rise, coastal storm surge, and riverine floodingand to develop policies and projects to reduce risk. Erosion hazards, which arelikely to worsen in many parts of the country due to predicted increases in extremeprecipitation events, remain largely unmapped. Communities also lack informationabout changing wildfire risk, drought and other climate-influenced hazards.24

20. John R. Nolon, The Land Use Stabilization Wedge Strategy: Shifting Ground toMitigate Climate Change, 34 WM. & MARY ENVTL. L. & POL’Y REV. 1, 6 (2009) (re-porting that sixty-six percent of the buildings in existence in the United States by theyear 2050 are projected to be built between now and then). Of course, failure to pro-actively plan for climate change will result in further investment in infrastructure andpatterns of development that, at best, fail to adapt to hazards, and, at worst, exacerbatehazards.

21. See JOANN CARMIN ET AL., PROGRESS AND CHALLENGES IN URBAN CLIMATE ADAP-

TATION PLANNING: RESULTS OF A GLOBAL SURVEY (2012) (hereinafter ICLEI 2011 SUR-VEY), available at http://www.icleiusa.org/action-center/learn-from-others/progress-and-challenges-in-urban-climate-adaptation-planning-results-of-a-global-survey; U.S.GOV’T ACCOUNTABILITY OFFICE (GAO), GAO 13-242, CLIMATE CHANGE: FUTURE

FEDERAL ADAPTATION EFFORTS COULD BETTER SUPPORT LOCAL INFRASTRUCTURE DECISION

MAKERS 37 (Apr. 12, 2012) (hereinafter GAO REPORT), available at http://www.gao.gov/assets/660/653741.pdf at 37 (“[d]ecision makers have not systematicallyincorporated potential climate change impacts in infrastructure planning for roads,bridges, and wastewater management systems”).

22. ICLEI 2011 SURVEY, supra note 21, at 14.23. Id. at 10.24. THE WHITE HOUSE, PRESIDENT’S STATE, LOCAL, AND TRIBAL LEADERS TASK FORCE

ON CLIMATE PREPAREDNESS AND RESILIENCE: RECOMMENDATIONS TO THE PRESIDENT 35(Nov. 2014), available at https://www.whitehouse.gov/sites/default/files/docs/task_force_report_0.pdf.

Climate Resilience Planning 529

In response to this vulnerability-preparedness gap, the InternationalPanel on Climate Change in its most recent assessment report highlights“the importance of city and municipal governments acting now to incor-porate climate change adaptation into their development plans and pol-icies and infrastructure investments,”25 characterizing “[a]ction in urbancentres [as] essential to successful global climate change adaptation.”26

Despite the essential nature of local climate change adaptationand the troubling preparedness gap that exists in the United States,municipalities in the United States report that one of the keyobstacles they face is a lack of adequate support from the federalgovernment.27 A 2014 Georgetown Climate Center report on howto improve federal programs to support local climate change pre-paredness found that many local governments “have been lookingto the federal government for help and guidance, only to run intochallenges tapping into federal programs and resources.”28 To besure, Congress continues to remain gridlocked on the issue, butthe executive branch has taken a number of actions over the lastyear to incentivize climate change adaptation at the state and locallevels.29 A recent U.S. Court of Federal Claim order may alsohave the effect of incentivizing local adaptation efforts as well byincreasing the likelihood of litigation or liability for failure to act.30

25. IPCC, CLIMATE CHANGE 2014: IMPACTS, ADAPTATION, AND VULNERABILITY. CON-

TRIBUTION OF WORKING GROUP II TO THE FIFTH ASSESSMENT REPORT OF THE INTERGOVERN-MENTAL PANEL ON CLIMATE CHANGE 541 (2014) [hereinafter AR5 WGII], available athttps://ipcc-wg2.gov/AR5/report/full-report/.

26. Id. at 538. See also Conference of Mayors, U.S. Mayors’ Climate ProtectionAgreement ( June 2014) (adding new focus on urban resiliency).

27. See ICLEI 2011 SURVEY, supra note 22, at 24 (95% of U.S. cities surveyed re-ported that securing funding for adaptation is a challenge and 6% reported that the fed-eral government fully understood the realities they face with respect to adaptation);John R. Nolon, Climate Change and Sustainable Development: The Quest forGreen Communities—Part II, 61 PLANNING & ENVTL. L. No. 11, 2009 at 3 (discussingfailure of state and federal policy to support local governments through adequate fund-ing, technical support, and complimentary laws and policies even though federal andstate law delegate much of the authority relevant to climate change adaptation tomunicipalities).

28. GEORGETOWN CLIMATE CTR, PREPARING OUR COMMUNITIES FOR CLIMATE IMPACTS:RECOMMENDATIONS FOR FEDERAL ACTION 5 (Sept. 2014), available at http://www.georgetownclimate.org/sites/www.georgetownclimate.org/files/GCC%20-%20Recommendations%20for%20Federal%20Action%20-%20September%202014.pdf.

29. See infra Part III.A.-D.30. See infra Part III.E.

530 The Urban Lawyer Vol. 47, No. 3 Summer 2015

III. Recent Federal Actions that Have Significant

Implications for Local Planning and Development

A. New Floodplain Management Executive Orderand Federal Flood Risk Management Standards

On January 30, 2015, the President issued Executive Order (EO)13690, regarding federal agencies’ consideration of floodplains, to re-define the regulated floodplain and establish the Federal Flood RiskManagement Standard (FFRMS).31 The new EO responds to the Pres-ident’s June 2013 Climate Action Plan, which directed federal agen-cies to

update their flood-risk reduction standards for federally funded projects to reflect aconsistent approach that accounts for sea-level rise and other factors affecting floodrisks. This effort will incorporate the most recent science on expected rates of sea-level rise (which vary by region) and build on work done by the Hurricane SandyRebuilding Task Force, which announced in April 2013 that all federally fundedSandy-related rebuilding projects must meet a consistent flood risk reduction stan-dard that takes into account increased risk from extreme weather events, sea-levelrise, and other impacts of climate change.32

The EO expands and amends Executive Order 11988, issued by Pres-ident Carter in 1977, which required federal agencies to avoid, to theextent possible, the adverse impacts inherent in occupying the flood-plain.33 Pursuant to the new EO, FEMA issued draft “Revised Guide-lines for Implementing Executive Order 11988, Floodplain Manage-ment,” which further explain how federal agencies are to considerfloodplains under the Executive Order.34 The new EO and guidelinesapply to a wide range of federal investments ranging from local floodprotection projects to funding for federal facilities to permit approvals,including, for example, federal approvals for wetland activities covered

31. Establishing a Federal Flood Risk Management Standard and a Process for Fur-ther Soliciting and Considering Stakeholder Input, Exec. Order No. 13690, 8-Fed. Reg.6425 (Jan. 30, 2015); Federal Flood Risk Management Standard (FFRMS), available athttp://www.fema.gov/media-library-data/1422649643416-c0ff9e51d11442790ab18bae8dc5df4b/Federal_Flood_Risk_Management_Standard.pdf.

32. The President’s Climate Action Plan 15 ( June 2013).33. Floodplain Management, Exec. Order No. 11988, 42 Fed. Reg. 26961 (May 24,

1977).34. REVISED GUIDELINES FOR IMPLEMENTING EXECUTIVE ORDER 11988, FLOODPLAIN

MANAGEMENT (draft for public comment 1/28/2015) [hereinafter REVISED FFRMSGUIDELINES], available at http://www.fema.gov/media-library-data/1422653213069-9af488f43e1cf4a0a76ae870b2dcede9/DRAFT-FFRMS-Implementating-Guidelines-1-29-2015r2.pdf. The associated federal register notice is available at https://www.federalregister.gov/articles/2015/02/05/2015-02284/guidelines-for-implementing-executive-order-11988-floodplain-management-as-revised. Note that the revisedguidelines are advisory only. Id. at 6.

Climate Resilience Planning 531

by Section 404 of the Clean Water Act.35 The comment period on therevised guidelines closed on April 6, 2015.36

One aspect of the new EO and revised guidelines that should be ofparticular interest to state and local law practitioners is the expansionof the boundary of federal floodplains beyond the FEMA defined spe-cial and moderate flood hazard areas (often referred to as the 100-yearand 500-year floodplains, respectively37). These portions of the flood-plain under EO 11988 have been based on calculations performed byFEMA for the purpose of determining a Base Flood Elevation (BFE)for flood insurance rating purposes. FEMA standards have requiredthat flood levels are determined by the projection of flood risk basedon historic data that fail to consider numerous flood risks, including,for example, projected sea level rise and increased frequency and in-tensity of storms, and risks related to stormwater drainage in areaswith less than one square mile of drainage.38 The new EO requiresthe use of projections that take into consideration future climatechange related risks, as opposed to relying solely on historic data,and redefines floodplain to expand both the horizontal and verticalboundaries of the floodplain applicable to all federal actions.39 Speci-fically, the new federal floodplain must be calculated by one of fourmethods: (a) “climate-informed science approach that uses the best-available, actionable hydrologic and hydraulic data and methods thatintegrate current and future changes in flooding based on climatescience”; (b) depending on the criticality of the activity, adding twoor three feet to the FEMA base flood elevation (BFE) calculationof the 1% flood; (c) using the .2% FEMA flood calculation, oftencalled the 500-year flood; or (d) “any other method identifiable inan update to the FFRMS.”40 The expanded floodplain boundary ap-plies to all federal actions, which include many state and local actionsthat require a federal permit or federal funds.41

The revised guidelines also require a multi-step “practicable alterna-tives analysis” be performed for any federal action that is proposed

35. See, e.g., 24 C.F.R. Part 55.36. See docket ID FEMA-2015-0006.37. The portions of the floodplain referred to by EO 11988 are commonly referred

to as the 100- and 500-year floodplain; a more accurate description is areas where aflood has a 1% or .2% annual chance of recurrence.

38. FEMA FLOOD INSURANCE STUDY GUIDELINES 2-15 (2013), available at http://www.fema.gov/media-library-data/20130726-1546-20490-8681/frm_scg.doc.

39. Exec. Order No. 13690, 80 F.R. 6425, §§1, 2(i).40. Id. § 2(i).41. See REVISED FFRMS GUIDELINES, supra note 34, § 1.

532 The Urban Lawyer Vol. 47, No. 3 Summer 2015

within or that may affect the expanded federal floodplain.42 Addition-ally, the revised guidelines increase the public notice and comment re-quirements for federal actions located within, or that may affect, theexpanded floodplain.43

B. New FEMA Guidance Requiring Consideration ofFuture Climate Risks in State Hazard MitigationPlans

Although states are currently required to adopt hazard mitigation plansin order to qualify for certain disaster funds, under past FEMA guide-lines state governments could assess their potential risks based on his-toric data and, in essence, ignore risks from the foreseeable effects ofclimate change, including rising sea levels, higher storm surges, andmore frequent and intense storms, droughts, and heat waves.44 InMarch 2015, FEMA issued a State Mitigation Plan Review Guide, fol-lowing notice and comment.45 As of March 6, 2016, the new Guidewill be FEMA’s official policy on the natural hazard mitigation plan-ning requirements of Title 44 of the Code of Federal Regulations(CFR) Part 201, and FEMA’s interpretation of federal regulationsfor state hazard mitigation plans.46

Significantly, under the new guidance, state mitigation plans mustconsider the probability of future hazards taking into considerationchanging future conditions, including changing climate and weatherconditions.47 The Guide explains that future climate change-relatedrisks must be considered because “[p]ast occurrences are important toa factual basis of hazard risk; however, the challenges posed by climatechange, such as more intense storms, frequent heavy precipitation, heat

42. Exec. Order No. 13690, 80 F.R. 6425 §§ 1, 2(c). See also REVISED FFRMSGUIDELINES, supra note 34, at 48 (describing practicable alternatives analysis).

43. REVISED FFRMS GUIDELINES, supra note 34, § 2(a).44. State mitigation plans are one of the conditions of eligibility for certain FEMA

assistance, such as Public Assistance Categories C-G and Hazard Mitigation Assis-tance mitigation project grants. See, e.g., 44 C.F.R. § 201.4(a) (2014) (providingthat Standard State Mitigation Plan meeting the requirements of 44 C.F.R. § 201 isa condition of receiving non-emergency Stafford Act assistance and FEMA mitigationgrants).

45. FEMA, FP 302-094-2, State Mitigation Plan Review Guide (released Mar.2015, effective Mar. 6, 2016), available at http://www.fema.gov/media-library-data/1425915308555-aba3a873bc5f1140f7320d1ebebd18c6/State_Mitigation_Plan_Review_Guide_2015.pdf [hereinafter FEMA].

46. See State Mitigation Plan Review Guide, FEMA, available at http://www.fema.gov/media-library-data/1428593340963-04be109f542645c2837020c4d8d81c8e/State_Mitigation_Plan_Review_Guide_Factsheet.pdf (last visited May 8, 2015)[hereinafter FEMA Factsheet].

47. See id. at § 3.2.

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waves, drought, extreme flooding, and higher sea levels, could signifi-cantly alter the types and magnitudes of hazards impacting states inthe future.”48

Recognizing the difficulty of quantifying climate change relatedrisks at a state level, the Guide provides that “states are expected tolook across the whole community of partners (for example, public,private, academic, non-governmental, etc.) to identify the most rele-vant data and select the most appropriate methodologies to assessrisks and vulnerability.”49 Nevertheless, with the exception of stateslike New York, which has already begun to develop statewide cli-mate-related projections and to assess related risks,50 states may behard pressed to quantify future hazard probabilities by the time theirnext hazard mitigation plan update is due, given the complexity ofscaling global climate data to a regional scale and identifying relatedrisks within a relatively short time frame.51 Indeed, recognizing localgovernments’ unmet need for climate-related data and other supportfrom the federal government, the Government Accountability Office(GAO) recommended in a 2013 report that a federal entity designatedby the Executive Office of the President work with agencies to:(1) “identify for decision makers the ‘best available’ climate-relatedinformation for infrastructure planning,” and (2) “clarify sources oflocal assistance for incorporating climate-related information andanalysis into infrastructure planning . . . .”52

The new FEMA guidance also recognizes that, to reduce risk andincrease resilience, the state mitigation planning process and programmust be more than an emergency management plan; rather, state mit-igation planning must include other effected sectors, including, where

48. Lydia Wheeler, Feds to require climate change plans for states seeking disasterrelief, THE HILL, (May 5, 2015, 10:32 AM), http://thehill.com/regulation/241050-gop-lawmakers-ask-fema-to-explain-new-disaster-grant-requirement.

49. FEMA, supra note 45 at § 3.2.50. New York Community Risk and Resiliency Act, Ch. 355, 2014 N.Y. Laws (di-

recting state agencies to prepare climate projections and model municipal laws takinginto consideration sea-level rise and other climate-related events and “develop addi-tional guidance on the use of resiliency measures that utilize natural resources and nat-ural processes to reduce risk.”).

51. See RL WILBY ET AL., INTERGOVERNMENTAL PANEL ON CLIMATE CONTROL, GUIDE-

LINES FOR USE OF CLIMATE SCENARIOS DEVELOPED FROM STATISTICAL DOWNSCALING MOD-

ELS 3 (Aug. 2004) (citing sources recognizing problems related to impact studies at afiner spatial scale than climate change data), available at http://www.ipcc-data.org/guidelines/dgm_no2_v1_09_2004.pdf.

52. See GAO REPORT, supra note 21, at 87. The GAO report also advised that revi-sion of the CEQ guidelines on NEPA reviews of climate change impacts and riskscould also provide much-needed support to state and local governments. See infraPart II.C.

534 The Urban Lawyer Vol. 47, No. 3 Summer 2015

applicable, economic development, land use, housing, health and so-cial services, and infrastructure.53 Additionally, interpreting 44 CFR§201.4(c)(6), which requires that a state mitigation plan “be formallyadopted by the State,” the new guidance clarifies that state hazard mit-igation plans must be adopted by the highest elected official in thestate or his or her designee.54 The guidance states that such adoption“demonstrates commitment to the mitigation strategy and may serveas a means to communicate priorities to entities within the state agen-cies regarding vulnerability and mitigation measures. Plan adoption bythe state’s highest elected official or designee may increase awarenessof and support from the state agencies with mitigation capabilities andresponsibilities, not just the state agency responsible for the mitigationplanning program.”55

C. Updated Draft CEQ Guidance Advises FederalAgencies to Consider the Effect of Federal Actionson Climate and the Effect of Climate on theFederal Actions

On December 18, 2014, CEQ released an updated draft guidance thatsuperseded the draft greenhouse gas and climate change guidance re-leased by CEQ in February 2010.56 The draft guidance suggests howfederal agencies should consider the effects of greenhouse gas emis-sions and climate change in their National Environmental PolicyAct (NEPA) evaluations of proposed Federal actions and identifies“opportunities for using information developed during the NEPAreview process to take into account appropriate adaptation opportuni-ties.”57 The draft guidance counsels agencies to consider both the po-tential effects of a proposed action (and its reasonable alternatives) onclimate change, as indicated by its estimated greenhouse gas emis-sions, and the implications of climate change for the environmentaleffects of a proposed action (and its reasonable alternatives).58

53. FEMA, supra note 45 at §3.1.54. Id. at § 3.7. See also FEMA Factsheet, supra note 46.55. FEMA, supra note 45 at § 3.7.56. Council on Environmental Quality, Revised Draft Guidance for Greenhouse

Gas Emissions and Climate Change Impacts, WHITEHOUSE.ORG, https://www.whitehouse.gov/administration/eop/ceq/initiatives/nepa/ghg-guidance.

57. See COUNCIL ON ENVIRONMENTAL QUALITY, REVISED DRAFT GUIDANCE 30 (Dec.2014) (summarizing draft guidance) [hereinafter CEQ], available at https://www.whitehouse.gov/sites/default/files/docs/nepa_revised_draft_ghg_guidance_searchable.pdf.

58. Id. at 3.

Climate Resilience Planning 535

The revised draft guidance appears to respond to criticism that the fed-eral government was advancing federal actions without a coordinated ap-proach to the assessment of climate risks and was failing to provideadequate information about climate risks to local decision makers to sup-port infrastructure planning and development. In its 2013 report, theGAO concluded that, although the federal government plays a criticalrole in producing the information needed to facilitate informed local in-frastructure adaptation decisions, this information is not easily accessibleto local decision makers.59 The GAO noted that updating and finalizingthe CEQ guidance is one of several federal efforts under way to facilitatemore informed local adaptation decisions.60 The governors, mayors, andother local leaders on the President’s Task Force on Climate Prepared-ness and Resilience also recommended in their report to the Presidentin November 2014 that CEQ finalize its 2010 guidance. The TaskForce noted specifically that, because CEQ had yet to finalize the2010 draft guidance, “projects and investments are being advanced with-out adequate and coordinated consideration of the project design or alter-natives relative to climate impacts and greenhouse gas emissions, adirection that generates unacceptable public health, safety, and financialrisks for communities.”61

The revised draft guidance applies to all proposed federal actions,including federal site-specific actions, federal grants, federal rulemak-ing actions, and federal land and resource management decisions.62

However, it is unclear what consequence a federal agency that failsto follow the guidance will face because the guidance states expresslythat it is a set of policy recommendations and is not legally binding.63

As of May 2015, CEQ had not finalized the revised guidance. Thecomment period on the revised draft guidance closed March 25,2015.64

59. See GAO REPORT, supra note 21, at 80 (summarizing results from GAO studyand citing NATIONAL RESEARCH COUNCIL, PANEL ON STRATEGIES AND METHODS FOR CLI-

MATE-RELATED DECISION SUPPORT, COMMITTEE ON THE HUMAN DIMENSIONS OF GLOBAL

CHANGE, INFORMING DECISIONS IN A CHANGING CLIMATE (National Academies Press,2009)).

60. Id.61. See THE WHITE HOUSE, supra note 24, at 20 (recommendation 2.7).62. See CEQ, supra note 57, at 8 (identifying range of applicable federal actions).63. Id. at 1 n.4.64. Revised Draft Guidance for Greenhouse Gas Emissions and Climate Change

Impacts, CEQ, COUNCIL ON ENVIRONMENTAL QUALITY, https://www.whitehouse.gov/administration/eop/ceq/initiatives/nepa/ghg-guidance (last visited May 21, 2015).

536 The Urban Lawyer Vol. 47, No. 3 Summer 2015

D. HUD Resilience Activities

Although the President has directed all federal agencies to engage in ad-aptation planning,65 HUD’s approach to resilience in particular has thepotential to significantly effect local disaster preparedness. In additionto billions of dollars per year in physical infrastructure expenditures,HUD is one of the largest sources of funding for long-term disaster re-covery.66 HUD’s Community Development Block Grant-Disaster Re-covery (CDBG-DR) is a supplemental appropriation to state and localgovernments for unmet housing, economic, and infrastructure needs.67

Although CDBG-DR is only appropriated on an ad hoc basis, the annualCDBG program is often a critical resource for state and local govern-ments working during the recovery process to increase resilience by,for example, helping to fund elevations and buyouts.68

Currently, HUD is running the National Disaster Resilience Compe-tition. The competition’s goal is to fairly allocate the remaining onebillion dollars allocated through Public Law 113-2 CDBG-DRfunds.69 This is a two-phase competition where eligible applicantsframe a resilience approach in Phase 1, and, if successful, will be in-vited to expand the resilience approach in Phase 2. Applicants will beawarded funds if they are successful in Phase 2.Additionally, HUD established an internal Resilience Council to en-

sure all HUD activities incorporate resilience to natural disasters andclimate-related threats.70 The Council developed and is currently work-ing to implement the agency’s Climate Change Adaptation Plan.71 Ac-cording to the plan, HUD is identifying threats and adapting policies

65. See Exec. Orders No. 13514, 74 Fed. Reg. 52117 (Oct. 5, 2009) (establishinggreenhouse gas emission reductions a performance metric for all federal agencies andrequiring a deliberative planning process to ensure goal achievement); CEQ, FEDERALAGENCY CLIMATE CHANGE ADAPTATION PLANNING IMPLEMENTING INSTRUCTIONS (Mar. 4,2011), available at https://www.whitehouse.gov/sites/default/files/microsites/ceq/adaptation_final_implementing_instructions_3_3.pdf.

66. See HUD, HOUSING AND URBAN DEVELOPMENT CLIMATE CHANGE ADAPTATION

PLAN OCTOBER 2014 3 (2014) [hereinafter HUD ADAPTATION PLAN], available athttp://portal.hud.gov/hudportal/documents/huddoc?id=HUD2014CCAdaptPlan.pdf.

67. See Housing and Community Development Act of 1974 § 103, 42 U.S.C.§ 5303 (2014) (authorizing CDBG-DR funding). See also 24 C.F.R. 570 (2015).

68. See generally THE COMMUNITY DEVELOPMENT BLOCK GRANT PROGRAM—FACTSHEET (no date), available at https://www.hudexchange.info/onecpd/assets/File/The-Community-Development-Block-Grant-Program-Fact-Sheet.pdf; CommunityDevelopment, HUD.GOV, http://portal.hud.gov/hudportal/HUD?src=/program_offices/comm_planning/communitydevelopment (last visited May 19, 2015).

69. See Disaster Relief Appropriations Act of 2013, P.L. 113-2.70. HUD ADAPTATION PLAN, supra note 66, at 4.71. See HUD ADAPTATION PLAN, supra note 66. HUD issued its first Agency Cli-

mate Change Adaptation plan in 2012. Id. at 9.

Climate Resilience Planning 537

and investments to help communities better prepare and respond to theeffects of climate change, including approaching rebuilding in a waythat increases resilience.72

Among the more than two dozen proposed actions, the plan pro-poses that the agency update its floodplain management regulationsto require that “projects involving new construction or substantial im-provement be elevated additional footage above the base flood eleva-tion, as determined by FEMA’s best available data.”73 The plan alsocalls for considering the effects of climate change on vulnerable com-munities when conducting NEPA reviews of proposed HUD actions,74

reviewing and establishing building standards for new constructionand substantial rehabilitations to incorporate sustainability and resil-ience measures,75 and encouraging Community Planning and Devel-opment (CPD) grantees to discuss climate-related risk and actionsneeded to minimize potential impact of these risks on vulnerablepopulations served by CPD programs in their Consolidated Plans.76

E. An Interesting Twist on Municipal Liability forFailure to Adapt

Given the clear role for local governments in adaptation planning andimplementation,77 some scholars and commentators question whetherlocal governments will soon face liability for failure to plan for andimplement climate change adaptation measures.78 Commentary onthe potential for municipal liability for failure to adapt has focused pri-marily on tort liability.79 However, at least one scholar, ChristopherSerkin, has argued that regulatory failure to protect property in theface of climate change could amount to an unconstitutional taking.80

And, on May 1, 2015, the U.S. Court of Federal Claims increased

72. Id. at 3-4.73. Id. at 16 (action 1.4).74. Id. at 16-17 (action 1.5).75. Id. at 18 (action 1.7).76. Id. at 21-22 (action 1.11).77. See Salkin, supra note 19, at 10158.78. See, e.g., Maxine Burkett, Duty and Breach in an Era of Uncertainty: Local

Government Liability for Failure to Adapt to Climate Change, 20 GEO. MASON L.REV. 775, 780–81 (2013).

79. See, e.g., id.; Jenna Shweitzer, Climate Change Legal Remedies: HurricaneSandy and New York City Coastal Adaptation, 16 VT. J. ENVTL. L. 243 (2014) (apply-ing Maxine Burkett’s tort liability argument to New York City, concluding the Citywould not face liability for failure to adapt reasonably, and arguing that New Yorkcommon law signals to local governments that property owners bear the risks of fail-ure to adapt to natural hazards).

80. See Christopher Serkin, Passive Takings: The State’s Affirmative Duty to Pro-tect Property, 113 MICH. L. REV. 345, 388–406 (2014).

538 The Urban Lawyer Vol. 47, No. 3 Summer 2015

the specter of municipal liability for failure to adapt to climate changerisks when it found the U.S. Army Corps of Engineers (USACE) liablefor damage caused by temporary flooding from Hurricane Katrina andother storms under a takings theory based on USACE’s failure tomaintain a navigational channel that USACE had constructed in the1960s.81

Relying in large part on the U.S. Supreme Court’s 2012 decision inArkansas Game & Fish Commission,82 Judge Susan Braden ruled inSt. Bernard Parish Government that USACE’s failure to properlymaintain the Mississippi River–Gulf Outlet (“MR-GO”), a seventy-six mile long navigational channel constructed, expanded and operatedby the Corps, resulted in a taking of private property without just com-pensation in violation of the Takings Clause.83 Judge Braden foundthat the Corps’ negligent design and failure to maintain the MR-GOexacerbated flood damage from Hurricane Katrina and several subse-quent storms, and, although temporary, wrongfully deprived landown-ers of the use of their property.84

According to Judge Braden, to prove a temporary taking, a plaintiffmust show: (1) a protectable property interest under state law; (2) thecharacter of the property and the owners’ “reasonable-investmentbacked expectations”; (3) foreseeability; (4) causation; and (5) substan-tiality.85 Because St. Bernard’s Parish involved affirmative govern-mental actions (i.e., negligent expansion and maintenance of thenavigational channel), the case leaves open the question of whether

81. St. Bernard Parish Gov’t v. U.S., No. 05-1119L, 2015 WL 2058969 (Fed. Cl.May 1, 2015).

82. Ark. Game & Fish Comm’n v. United States, 133 S. Ct. 511, 515 (2012) (hold-ing that “recurrent floodings, even if of finite duration, are not categorically exemptfrom Takings Clause liability”). Prior to Arkansas Game, federal courts had generallyunderstood Takings Clause liability as limited to permanent or inevitably recurringflood events. See Ark. Game & Fish Comm’n v. United States, 637 F.3d 1366 (Fed.Cir. 2011), reversed by 133 S. Ct. 511 (2012). But see First English EvangelicalLutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 319 (1987)(holding that invalidation of ordinance, “though converting the taking into a ‘tempo-rary’ one, is not a sufficient remedy to meet the demands of the Just CompensationClause”).

83. St. Bernard Parish Gov’t, 2015 WL 2058969 at *1.84. Id. The court built on the factual findings of the earlier tort cases against the

United States, In re Katrina Breaches Consolidated Litigation, which had found thegovernment liable for negligence based on, among other things, the long history ofcredible warnings that MR-GO was a “powder keg” of flooding risk prior to the adventof Katrina. But see In re Katrina Canal Breaches Litig., 696 F.3d 436 (5th Cir. 2012)(reversing on governmental immunity grounds). Id. at *2.

85. St. Bernard Parish Gov’t, 2015 WL 2058969 at *26.

Climate Resilience Planning 539

a government entity could be liable for failure to take any action in theface of foreseeable climate-related risks.Because the consequences of destructive storms are foreseeable and

at least in part attributable to failures in the legal system, Maxine Bur-kett argues that local governments could face tort liability for failure toadapt to climate change.86 Burkett posits that, although no affirmativeduty exists for governments to provide protection from natural haz-ards, once a local government begins instituting adaptation measuresthat action triggers a duty to adapt reasonably under the circumstancesand failure to do so can result in liability for negligence.87 The FifthCircuit ultimately rejected tort theories of liability in the Katrina liti-gation as violative of governmental immunity under the Flood ControlAct (FCA) and discretionary-function exception to the Federal TortClaims Act (FTCA)88 But, in St. Bernard’s Parish, by basing TakingsClause liability in large part on USACE’s negligent expansion andfailure to maintain MR-GO, the court essentially expanded TakingsClause liability to encompass governmental negligence that exacer-bates weather-related damage to property.89

So far, in the United States, plaintiffs’ claims against local govern-ments have not extended to negligent failure to adapt to climatechange. Rather, plaintiffs injured by flooding have brought actionsagainst local governments alleging that the municipalities’ affirmativeacts of negligent design, construction or operation of flood controlstructures caused the plaintiffs’ injuries,90 and, in at least one instance,plaintiffs injured by flooding brought an action against a county gov-ernment claiming that the county’s negligent regulation of develop-ment on an adjacent property caused plaintiffs’ damages.91 With

86. Burkett, supra note 78, at 780–81. See also Daniel Farber, Symposium Intro-duction: Navigating the Intersection of Environmental Law and Disaster Law, 2011B.Y.U. L. REV. 1783, 1786 (2011) (“environmental disasters stem from gaps in envi-ronmental regulation: weak protection of wetlands, badly planned infrastructure, and,above all, climate change.”).

87. Burkett, supra note 78, at 780–81.88. Katrina Canal Braches Litig., 696 F.3d at 444 (immunity under FCA extends to

claims stemming from levee breaches caused by dredging of canal); id. at 449-52 (de-scribing the discretionary function exception to FTCA extends to remaining claims).

89. See John Echeverria, Ruling in MR-GO Takings Lawsuit, TAKINGS LITIGATION: ABLOG ABOUT TAKINGS LAW, May 2, 2015, http://takingslitigation.com/2015/05/02/ruling-in-mr-go-takings-lawsuit/ (“the decision would appear to convert the FederalTort Claims Act and its carefully crafted governmental immunities into a deadletter, at least in the flooding context”).

90. See, e.g., Vermef v. City of Boulder City, 80 P.3d 445 (Nev. 2003), abrogatedby ASAP Storage, Inc. v. City of Sparks, 173 P.3d 734 (Nev. 2007); Walter Legge Co.v. City of Peekskill, 210 A.D.2d 317 (1994 N.Y.S. 2d Dep’t).

91. See, e.g., Cootey v. Sun Inv., Inc., 718 P.2d 1086 (Hawaii 1986).

540 The Urban Lawyer Vol. 47, No. 3 Summer 2015

respect to the former actions, liability has tended to hinge on whetherthe municipality’s conduct was statutorily immune92 and, if it was not,whether the plaintiffs proffered sufficient proof of negligence and cau-sation.93 With respect to the latter action, the court held that the countyowed no duty to homeowners to ensure that development of an adjoin-ing subdivision would not create a risk of flooding the homeowners’property.94 St. Bernard Parish’s application of Arkansas Game &Fish, however, leaves open the possibility that a municipality’s negli-gent regulation of property that exacerbates flooding on that propertyor other properties could constitute a taking.Whether or not the liability theory of St. Bernard’s Parish survives

appeal or gains traction in other courts, the court’s imposition of gov-ernmental liability for negligently exacerbating flood damage couldopen the floodgates, so to speak, of litigation against government bod-ies for inadequately preparing for sea level rise, wild fires, drought,and other climate-related risks.95

III. Conclusion

Over the past year, the federal government has taken a number of stepsthat could help state and local governments get much-needed supportfor local resilience initiatives. By even partially filling the climate re-silience policy void at the national level, recent executive actions have

92. See, e.g., Vermef, 80 P.3d at 553 (ruling on appeal of summary judgment thatcity was not entitled to immunity for damages occurring during flood under statute im-munizing government entities from liability arising out of emergency management ac-tivities where damage was due to pre-emergency installation of the drainage channel),abrogated by ASAP Storage, 173 P.3d at 744-45 (ruling that statute immunizing gov-ernment from liability relating to emergency management activities creates immunityfor emergency responses and emergency preparation activities); see also In re KatrinaCanal Breaches Consol. Litig., 577 F. Supp. 2d 802, 807 (E.D. La. 2008) (ruling thatgenuine issues of material fact existed as to whether damage from flooding was causedby governmental negligence in design, construction, maintenance, and operation of anavigational channel, including resulting destruction of flood-mitigating wetlands, asopposed to negligence with regard to federal flood control project, which would besubject to statutory governmental immunity); In re Katrina Canal Breaches Consol.Litig., 696 F.3d 436 (5th Cir. 2012) (holding that the government was immunizedagainst claims for flooding damage).

93. Walter Legge Co., 210 A.D.2d at 317 (affirming order granting judgment asmatter of law for city where there was insufficient proof of causation and negligencein action against city for damage to property allegedly caused by flooding when nat-ural waterway used as part of municipal drainage system overflowed).

94. Cootey, 718 P.2d 1086.95. See Troubled Shores, CURRY COASTAL PILOT, Dec. 18, 2010 (reporting on lawsuit

by homeowners against developers and realty company for failure to disclose foresee-able risk to properties from creek migration), available at http://www.currypilot.com/News/Local-News/Troubled-shores.

Climate Resilience Planning 541

the potential to provide incentives, technical guidance and coordina-tion that state and local governments need to effectively plan forcurrent and future climate-related hazards.However, the federal government continues to provide climate hazard

mitigation support only at the periphery—that is, through executive ac-tions, many of which are merely advisory. This tenuous approach is oc-curring notwithstanding knowledge that state and local governments,which have been delegated much of the authority relevant to climatechange adaptation, need federal support in order to take effective actionto close the troubling preparedness gap that exists in the United States.The result is a federal scheme akin to balancing a three-legged stool ontwo legs, and the risk of toppling—or in this case of suffering massivehuman and property losses—falls in large part on the state and localgovernments that are responsible for local adaptation planning.

542 The Urban Lawyer Vol. 47, No. 3 Summer 2015

Local decision-makers who fail to prepare their communities forclimate change could find themselves in court.

BY: Edward Thomas, Laurie Mazur | October 19, 2015

Last month, in a case that sent shivers through corporate America, a former peanut-company executive was sentenced to 28 years in prison for his role in a deadlysalmonella outbreak. The executive, Stewart Parnell, knowingly shippedcontaminated peanut butter to stores across the country. Nine people died andhundreds more were sickened.

Parnell's punishment was unprecedented for a foodborne-illness case. But it signalsan important shift in the prevailing legal winds: More courts are holding people toaccount for failure to prevent harm. Increasingly, corporate and civic leaders face stiffcivil -- and potentially, in the most egregious situations, criminal -- penalties whenthey endanger others.

It's a shift that has important implications for local decision-makers -- the publicofficials, developers and property owners who shape the places where we live andwork. As our largely ill-prepared cities and towns confront an uncertain and changingclimate, those decision-makers may be held accountable for development that putspeople in harm's way.

Here's why. The law, in theory if not always in practice, encourages responsiblebehavior based on a "standard of care" as exercised by an individual, agency orcorporation. People with special capabilities, such as engineers or architects, areheld to an even higher standard of care.

Typically, when someone breaches a duty of care and others suffer harm, civillitigation is the legal remedy of choice, and the harm is most often offset withmonetary damages. Today, we are seeing more litigation over actions that result inforeseeable harm.

For example, Des Moines Water Works recently sued the leaders of three upstreamfarming counties for failing to keep nitrates out of the water supply. The lawsuitalleges that the counties' voluntary measures to reduce nitrate pollution have failed,forcing the utility to filter water at considerable public expense.

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In the Des Moines case, county officials knew they were missing the mark on nitratepollution. But other cases have found civil liability when responsible partiesunknowingly made a mistake. For example, lenders and corporations that readFEMA flood-insurance maps incorrectly have historically escaped liability, even whentheir mistakes result in uninsured losses for homeowners. But that changed in 2008with a federal appeals court ruling that allowed a Mississippi couple to sue acompany that determined that their property was not in a federal flood zone andtherefore didn't need flood insurance. Their home was inundated by HurricaneKatrina.

Could local officials be held accountable if they fail to protect their citizens fromclimate disaster? Recent federal rulings suggest that they could. Notably, in May ofthis year, the Court of Federal Claims found the U.S. Army Corps of Engineers liablefor damage caused by flooding from Katrina and other storms. Judge Susan Bradenruled that the corps' failure to properly maintain the Mississippi River-Gulf Outletexacerbated flood damage, depriving landowners of the use of their homes. Federalflood-control projects usually enjoy immunity from liability, but in this case thegovernment's negligence was found to be an unconstitutional "taking" of citizens'property.

Failure to prevent climate disaster could even, in the rarest and most egregiouscircumstances, result in criminal charges. Even if someone does not deliberatelyintend to cause harm, they may be accused of a crime if they act in a manner thatleads to serious harm or loss of life. Such was the case last year when JamesPflueger, the owner of a dam in Hawaii, was indicted for common law murder.Pflueger's failure to safely maintain the dam resulted in a catastrophic 2006 breachthat killed seven people. (The case was eventually dropped due to Pflueger'sadvanced age and his willingness to pay considerable restitution to the victims'families.)

Decision-makers who fail to ensure climate-safe design and construction could findthemselves in similar straits. Most American cities and towns are sorely unpreparedfor the current climate, and even less prepared for future climate-change impacts.Some municipal governments have made significant contributions to adaptationplanning and implementation, but generally there remains a troubling andever-increasing gap between climate-related vulnerabilities and local preparedness.According to a 2011 survey, only 13 percent of U.S. cities had even completed anassessment of their vulnerabilities and risks.

Failure to prepare is not a victimless crime. In unprepared communities, people willsuffer vast, preventable misery. Families will lose their homes. Lives will be lost.Public treasuries will be drained, leaving fewer resources available for education,infrastructure and other public needs. And those who suffer will seek justice.

At its core, government exists to prevent us from harming each other. When

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government fails in that duty, the victims may well seek to share their misery with allwho have contributed to their misfortune. Decision-makers who ignore the threat ofclimate change, take note: Whether at the gates of St. Peter's or before a judge, youmay be called upon to answer for your actions.

This article was printed from: http://www.governing.com/gov-institute/voices/col-legal-consequences-local-decision-makers-ignoring-climate-

risk.html

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14 national wetlands newsletter

Endnotes

1. Koontz v. Saint Johns River Water Management District, 133 S. Ct. 2586 (2013).2. 133 S. Ct. at 2595.3. Id.4. Amicus Curiae Brief of Former Members of the National Research Council Com-mittee on Mitigating Wetland Losses, Koontz v. Saint John’s River Water Management District [hereinafter Amicus Brief ] at 5-10, citing, inter alia, Millennium Ecosys-tem Assessment, Ecosystems and Human Well-Being: Wetlands and Water Synthesis 1-3, tbl.1, 30-38, 47-48 (World Res. Inst. 2005.5. Nat’l Research Council, Compensating for Wetland Losses Under the Clean Water Act 1 (Nat’l Acad. Press 2001 [hereinafter NRC, Wetland Mitiga-tion Report].6. 33 C.F.R. §332 and 40 C.F.R. §230; see also Compensatory Mitigation for Losses

of Aquatic Resources, 73 Fed. Reg. 19594 et seq. (Apr. 10, 2008).7. 133 S. Ct. at 2608.8. Amicus Brief at 32-33, citing 33 C.F.R. §332.3(c)(2)(ii); 40 C.F.R. §230.93(c)(2)(ii); Compensatory Mitigation for Losses of Aquatic Resources, 73 Fed. Reg. at 19601, 19604; NRC, Wetland Mitigation Report, supra note 5, at 144.9. See, e.g., Royal C. Gardner’s article at 10-11 re mitigation banks functioning es-sentially as monopolies with very high mitigation credit costs.10. See, e.g., Environmental Law Institute, The Status and Character of In-Lieu Fee Mitigation in the United States at 4-5 (2006).11. Koontz, 133 S. Ct. at 2611.12. See, e.g., Amicus Brief at 5-9 at citations therein; John W. Day et al., Restoration of the Mississippi delta: Lessons From hurricanes Katrina and Rita, 315 Science 1679-84 (2007); Christine Shepard et al., Assessing Future Risk: Quantifying the Effects of Sea Level Rise on Storm Surge Risk for the Southern Shores of Long Island, New York, 60 Nat. Hazards 727-45 (2012).

Turning Koontz Into an Opportunity for More Resilient CommunitiesBy Edward Thomas and Lynsey R. Johnson

Before the U.S. Supreme Court decided Koontz v. St. Johns River Water Management District1, much uncer-tainty surrounded the decision. Even after the Court

released its decision in June 2013, some uncertainty remains. However, it is absolutely clear that the Supreme Court handed down a decision strongly supporting local and state efforts to ensure that the development activities of one person do not harm the community or neighboring properties. The deci-sion will certainly impact future development decisionmak-ing. It compels local and state governments to more closely examine potential harm that may be caused by a develop-ment, then carefully craft conditions for that development to mitigate harm in a more open and transparent manner. We view the Court’s decision as an opportunity for the “Whole Community”—insurance professionals, emergency manag-ers, community development staff, elected officials, climate adaptation and mitigation specialists, and floodplain manag-ers—to understand the importance of safe development based on the ancient maxim of property law: “use your property so you do not harm others.”2

The Koontz case involves a specific type of taking called an exaction. An exaction is a condition tied to the granting of a development permit by the government.3 It requires that a landowner take some action or refrain from some action in order to mitigate the negative anticipated effects of develop-ment.4 It is the government’s hope that the developer internal-izes some of the external costs of new development.5

As Bruce Myers discusses in his opening article, there have been three fairly recent Supreme Court cases on exactions, including Koontz. Koontz’s recent predecessors, Nollan v. Cal-

ifornia Coastal Commission6 and Dolan v. City of Tigard,7 both address the issues of exactions. In Nollan, the Court found that where an exaction creates a public easement across pri-vate property, it is a compensable taking unless it has a “close nexus” between the purpose of requiring a permit and the requested exaction.8 Further, the Court in Dolan required there to be a “rough proportionality” between the burden on the private-property owner and the benefit to the public.9

In Nollan, the property owners wanted to build a larger structure on their beachfront property. In order to do so, the Nollans needed to get a development permit from the California Coastal Commission. However, the Commission would only grant the permit if the Nollans allowed a pub-lic easement to pass across a portion of their beach property between the high-tide line and seawall. The Commission rea-soned that the new house would block the ocean view and contribute to a wall of residential structures, which would prevent the public from viewing the ocean.10 Ultimately, the Supreme Court held that reducing the barrier to the public beach was not a sufficiently legitimate government interest.

In Dolan, the owner of a supply store wanted to enlarge the size of the building and sought a permit to do so. The city required the owner to convey to it an affirmative easement on a portion of the lot lying within the 100-year floodplain adja-cent to a creek and an easement on an additional 15-foot strip of land for a bike path. In addition to applying the Nollan test of a “close nexus,” the Court held that the state must show that the extent of the exaction is proportional. The Court conceded that the store expansion may lead to increased traf-fic; however, the Court did not agree that the bike path was

15MARCH-APRIL 2014

the only way to offset the increased demand. Further, the Court did not see why the city asked for a portion of the floodplain for public use. The Court did not require a specific mathematical equation in determining proportionality, but rather required an individualized determination related both in nature and extent to the proposed development.11

In both Nollan and Dolan, the local governments required the property owners to dedicate portions of their property to the government. However, Koontz examines another type of exaction—monetary exactions. As the preceding articles have explained, in Koontz, the property owner wanted to build on 3.7 acres of his 14.9 acres of wetlands property and was required to obtain a permit from the local Water Man-agement District. Koontz offered to impose a conservation easement on 11 acres and to conduct additional engineer-ing efforts. However, the District did not agree and offered two other alternatives. Either Koontz could develop a much smaller area than proposed, build a costly stormwater man-agement facility, and enlarge the proposed conservation ease-ment. Or he could develop the 3.7 acres of property, but make off-site mitigations to enhance 50 acres of land elsewhere in the watershed. When Koontz rejected both alternatives, the District denied the permit.

After the Supreme Court of Florida ruled that the trial court should not have applied the Nollan/Dolan test to the conditions because the exaction did not concern real property, the Supreme Court reversed and held in favor of Koontz.12 The Court said that the unconstitutional conditions doctrine prevents governments from coercing people into giving up their rights. Further, the same legal test applies regardless of whether an applicant’s condition was dedication of real prop-erty or monetary exaction. The Court found that monetary exactions are “functionally equivalent to other types of land use exactions.”13

The Court reasoned that without applying Nollan/Dolan to both dedicatory exactions and monetary exactions, gov-ernments could work around the system. Without applying to both types, a government could tell a property owner that instead of a dedicatory exaction, they will accept a monetary exaction because one is constitutional and the other is not.

The good news is that the Supreme Court endorses the underlying philosophy of safe development-based planning. Justice Samuel A. Alito Jr. wrote in the majority opinion that “insisting that landowners internalize the negative externali-ties of their conduct is a hallmark of responsible land-use policy, and we have long sustained such regulation against constitutional attack.”14

There is frequent confusion about what is actually consid-ered an externality. An externality is a cost or benefit of a transaction that is not paid for or realized by the participants.15

A recent New York Times article defined negative externalities as “behavior with harmful side effects.”16 That Times article goes on to observe: “(b)ecause population density has been rising, behaviors with harmful side effects have been growing steadily more important. Our continued prosperity, and pos-sibly even the planet’s survival, will require thinking clearly about how to mitigate the resulting damage.”17

These side effects will need to be carefully managed in the future in order to ensure both economic and environmen-tal gains. So much of the devastation we describe as “natural disasters” is in reality a failure of human design, construction, planning, and community development in areas subject to the natural processes called natural hazards. These failures externalize into environmental plundering, which leads to costs for disaster survivors, especially the most vulnerable populations, as well as harm to communities, and huge costs to the taxpayer.18

The Supreme Court’s endorsement of government action to reduce or eliminate the harm caused by improper develop-ment is a welcome reaffirmation of the ancient maxim of prop-erty law; sic utere tuo ut alienum non laedas, which means “use your property so it does not harm others.” This legal maxim also has a strong moral and equitable basis. Mahatma Gan-dhi, one of the greatest moralists of the 20th century wrote: “Legal maxims are not so legal, as they are moral. I believe in the eternal truth of ‘sic utere tuo ut alienum non loedas’ (Use thy own property so as not to injure thy neighbour’s).”19 In Koontz, the Court strongly endorses preventative government action as a hallmark of responsible land use policy, which will prevent one person or group of people being permitted to take actions that will result in a disaster.20

Many did not see the positive side of Koontz when the deci-sion was released. Almost immediately, many commentators viewed the case as a victory for property owners and a defeat for government regulation. Many alarmist articles were writ-ten quoting attorneys and well-recognized scholars in the legal community who predicted that the sky was falling as a result of the ruling. They claimed that the practice of subject-ing monetary exactions to the Nollan/Dolan takings analy-sis would devastate land use planning and detract from the ability of local governments to negotiate for conditions that mitigate the impacts of proposed development.

As other authors in this issue have pointed out, it is impor-tant to note what the Supreme Court in Koontz did not do. The Court did not say that there was not a nexus between the off-site mitigation. Specifically, the Court only decided the issue of whether the Nollan/Dolan test applied to the facts in Koontz. The Supreme Court did not provide analysis of the Nollan/Dolan elements, but rather remanded it to the Florida Supreme Court to decide.

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Koontz almost guarantees and encourages future litiga-tion. However, going forward, agencies can avoid litigation by changing their practices. Agencies will have a heavier bur-den in providing scientific data that supports the need for mitigation in order to avoid litigation. In the past, agencies have enjoyed a deferential approach to their decisionmaking process. It is now vital for agencies to articulate the benefits, costs, and justifications for hazard mitigation. While agencies may view this extra work as a burden, providing this infor-mation can lead to increased community support for such projects. Communities will be able to witness firsthand the cost of development and the benefit of mitigation. In turn, this can lead to an increase in support for mitigation projects.

There are several ways to deal with the threat of increased litigation as a result of Koontz. Communities must practice principled, legal, sustainable, and safe development. Commu-nities can look to follow the safe development for Resilient Communities principles promoted by the Natural Hazard Mitigation Association; as well as the No Adverse Impact (NAI) principles promoted by the Association of State Flood-plain Managers (ASFPM).21 Communities can also accom-plish principled development through planning, partnerships, negotiations, multi-use mapping and engineering, and fair regulations to prevent harm. In the end, safe design and fair hazard regulation is a winning concept for the developers, agencies, and citizens of the community.

Koontz may have created a major incentive for commu-nities and their representative agencies to say “no” to devel-opment in order to avoid possible litigation. However, in reality, communities cannot avoid development altogether; demographic pressures from an increasing population will force development. Our choice as a society is not either “development” or “no development.” Rather, our choices are more accurately framed as: current practices that will lead to increased environmental despoliation, misery to disaster sur-vivors, and huge costs to the taxpayer; or better planned, safer development that protects water resources, people, property, the environment, the economy, and the taxpayer. All involved with development decisions can choose a win-win-win-win-win solution or a lose-lose-lose solution to inevitable develop-ment. Right now, sadly, many communities and developers are making lose-lose-lose development decisions.

Koontz forces agencies to rethink their negotiation tactics with developers. When working through negotiations with developers, it is imperative that communities do not begin the discussion with “no.”22 Rather, communities must begin the discussion positively. The agency can accomplish this by first identifying commonalities and points of agreement with the developers. The community can thank the developer for choosing them as the town in which to site their develop-

ment. After all, what community does not need the tax rev-enue or want development?

Subsequently, if there are issues with the development, it is important that the community bring the problems to the forefront. The community needs to clearly identify its pos-sible concerns and discuss specific issues with the proposed development. When in negotiations, it is important that both parties approach the negotiations proactively. If the negotia-tions become too heated, take a time out to control emotions. The developer must also keep the community’s interests and values in mind during negotiations. It is also important to anticipate the other side’s possible moves. And finally, keep asking why. Asking questions will help the community understand the opposing party’s interests and values. Do not be afraid to bring in additional city departments to the dis-cussion. Identify the planners, engineers, floodplain manag-ers, other experts, and coalitions or partnerships that can help the community understand the project and ask the important questions.

Additionally, if needed, develop a well-thought-out and clear “no.” In order to do this, communities need to consider the worst-case scenario with the development and to set limits on when they need to say no. In the end, if the parties are unable to agree, let the other side know the specific issues that are preventing a “yes.” By doing this, an agency empowers the private sector to do what it does best—solve a problem. Only then, once the issues are flushed out and resolved so both par-ties’ interests are served, can the parties get together to collec-tively solve problems and agree to a positive outcome.23

In the end, the Koontz case gives the floodplain manage-ment community validation. Essentially, the case is a ringing endorsement of hazard mitigation and climate adaptation, especially when Justice Alito refers to the excerpt from the Village of Euclid case.24 It encourages climate adaptation spe-cialists, hazard mitigators, and wetland and floodplain man-agers to realize the importance and science of hydraulics and the art of hydrology. It further inspires all concerned with developing a safer, more just, and resilient society. It forces a deeper understanding of the interworkings of a wetland and its natural flood protection characteristics and quantifiable benefits to society as a whole.

Koontz provides a great opportunity for communities. It allows communities to decide whether they want better standards to protect the economy and taxpayers or prefer to continue with current practices that will only lead to destruc-tion and future litigation. Koontz does not hurt, but rather supports, mitigation efforts to build a safer, more sustainable nation and world.

17MARCH-APRIL 2014

Endnotes

1. Koontz v. St. Johns River Water Management, 133 S. Ct. 2586 (2013).2. For further explanation of this concept, see Edward A. Thomas, Esq. & Sam Riley Medlock, Mitigating Misery: Land Use and Protection of Property Rights Before the Next Big Flood, 9 Vt. J. Envtl. L. 155 (2008).3. See Anne Siders, Managed Coastal Retreat: A Legal Handbook on Shift-ing Development Away From Vulnerable Areas (Oct. 2013), available at http://web.law.columbia.edu/sites/default/files/microsites/climate-change/files/Publica-tions/ManagedCoastalRetreat_FINAL_Oct%2030.pdf.4. Id.5. Id.6. Nollan v. California Coastal Commission, 483 U.S. 825 (1987).7. Dolan v. City of Tigard, 512 U.S. 374 (1994).8. Nollan, 483 U.S. at 838-39.9. Dolan, 512 U.S. at 391.10. Nollan, 483 U.S. at 828.11. Dolan, 512 U.S. at 395.12. Koontz, 133 S. Ct. at 2586.13. Id.14. See Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).15. Holly Doremus et al., Environmental Policy Law: Problems, Cases, and Readings 12 (2012).16. Robert H. Frank, Ronald Coase, a Pragmatic Voice for Government’s Role, http://www.nytimes.com/2013/09/15/business/ronald-coase-a-pragmatic-voice-for-gov-ernments-role.html (accessed Feb. 17, 2014).17. Id.

18. David Conrad & Edward A. Thomas, Esq., 15 Ways to Rethink the Federal Budget (Greenstone et al. eds., Brookings Institute 2013).19. See Nirmal Kumar Bose et al., Selections From Gandhi (Encyclopedia of Gandhi’s Thoughts), http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=7&cad=rja&ved=0CE0QFjAG&url=http%3A%2F%2Fsevagramgandhiashram.org%2Fmkgandhi%2Febks%2FSelectionsFromGandhi.pdf&ei=kIgDU6eCBaXf0gHHoIBg&usg=AFQjCNGCn4r6T_e0yP0t5ygEkklntXHpqg&bvm=bv.61535280,d.dmQ (last visited Feb. 18, 2014). Additional information on Gandhi’s thoughts on this maxim can be found at Mohandas Gandhi, Gandhi: Selected Writings 133 (Dover Publications 2005).20. See Koontz, 133 S. Ct. at 2586; see also Edward A. Thomas, Esq. & Sam Riley Medlock, Mitigating Misery: Land Use and Protection of Property Rights Before the Next Big Flood, 9 Vt. J. Envtl. L. 155 (2008).21. See Edward A. Thomas, Esq., Natural Hazards and the Law (Kiefer & Je-rolleman ed., CRC Press 2013), as well as the many publications and workshops on the websites of the Natural Hazard Mitigation Association, www.nhma.info, the Association of State Floodplain Managers, www.floods.org. See also Association of State Floodplain Managers, No Adverse Impact Floodplain Management, http://www.floods.org/index.asp?menuID=349&firstlevelmenuID=187&siteID=1 (last visited Feb. 10, 2014).22. William Ury, The Power of a Positive No (2007).23. The Natural Hazard Mitigation Association has developed a series of workshops and webinars built around this theme. PowerPoints from some of those workshops are available on the web. See David Mallory, PE, CFM, & Edward A. Thomas, Esq., 5th Annual Montana Floodplain Resource Seminar and Floodplain Legal and Sustainable Development Workshop, http://dnrc.mt.gov/wrd/water_op/floodplain/2013_seminar/default.asp (last visited Feb. 18, 2014).24. Village of Euclid, 272 U.S. 365

Consultant Perspectives on KoontzBy Ann Redmond

Koontz v. St. Johns River Water Management District did not decide about the acceptability of mitigation per se. While the U.S. Supreme Court reflected at length on the effect of Nollan/Dolan on the expenditure of funds, it did not address whether Nollan/Dolan even applied to mitigation of impacts. But it did address the point that the requested mitigation must have a nexus and rough proportionality to the permit-ted impacts.

The case concerned a permit issued under the state of Flori-da’s regulations, not a Clean Water Act §404 permit issued by the U.S. Army Corps of Engineers (the Corps). While there is a high degree of similarity between the two regulatory programs, there are some inconsistencies, such as how mini-mization of impacts is addressed in the permitting review. But in a general sense the two programs are reasonably simi-lar—similar enough that the agencies implementing Florida’s Environmental Resource Permitting (ERP) program and the Jacksonville District and commenting agencies have been able to effectively collaborate on permits over the years. On a similarity front, both use functional assessments to determine the appropriate amount of mitigation.

BackgroundAt the time of the St. Johns River Water Management

District’s Koontz permit application decision in 1994, the state’s regulations required assessing how much mitigation was needed to offset the permitted wetland losses by assess-ing the functions expected to be lost. The Florida Legislature had just passed a law called the Florida Environmental Reor-ganization Act of 1993 (FLERA) that created a new section in Florida’s statutes--§373.4135 Mitigation and Mitigation Banking--stating:

“The Legislature finds that the adverse impacts of activi-ties regulated under this part may be offset by the creation and maintenance of regional mitigation areas or mitigation banks. Mitigation banks can minimize mitigation uncer-tainty and provide ecological benefits. Therefore, the depart-ment and the water management districts are directed to participate in and encourage the establishment of private and public regional mitigation areas and mitigation banks. The department and the districts are directed to adopt rules by January 1, 1994, governing the use of mitigation banks.”

This change was driven by the regulated community, not the agencies. There was frustration with the agencies’ imple-

1 FY 2016 HSGP Fact Sheet

Fiscal Year 2016 Homeland Security Grant Program Overview As appropriated by the Department of Homeland Security Appropriations Act, 2016 (Pub. L. No. 114-113); and authorized by the Homeland Security Act of 2002, as amended (Pub. L. No. 107-296); the Department of Homeland Security’s (DHS)/Federal Emergency Management Agency’s (FEMA) Fiscal Year (FY) 2016 Homeland Security Grant Program (HSGP) provides funding to states, territories, urban areas, and other local and tribal governments to prevent, protect against, mitigate, respond to, and recover from potential terrorist attacks and other hazards. The FY 2016 HSGP plays an important role in the implementation of the National Preparedness System by supporting the building, sustainment, and delivery of core capabilities essential to achieving the National Preparedness Goal (the Goal) of a secure and resilient Nation. Delivering core capabilities requires the combined effort of the whole community, rather than the exclusive effort of any single organization or level of government. HSGP is comprised of three grant programs: State Homeland Security Program (SHSP), Urban Area Security Initiative (UASI), and Operation Stonegarden (OPSG). Per section 2006 of the Homeland Security Act of 2002, as amended (6 U.S.C. § 607), DHS/FEMA is required to ensure that at least 25 percent (25%) of grant funding appropriated for grants awarded under HSGP’s authorizing statute is used for law enforcement terrorism prevention activities (LETPA). DHS/FEMA meets this requirement, in part, by requiring all SHSP and UASI recipients to ensure that at least twenty five percent (25%) of the combined HSGP funds allocated under SHSP and UASI are dedicated towards law enforcement terrorism prevention activities, as defined in 6 U.S.C. § 607, and linked to one or more core capabilities within the Goal. The National Prevention Framework describes those activities that should be executed upon the discovery of intelligence or information regarding an imminent threat to the homeland, in order to thwart an initial or follow on terrorist attack, and provides guidance to ensure the Nation is prepared to prevent, avoid, or stop a threatened or actual act of terrorism. Activities outlined in the National Prevention Framework are eligible for use as LETPA focused funds. In addition, where capabilities are shared with the protection mission area, the National Protection Framework activities are also eligible. Other terrorism prevention activities proposed for funding under LETPA must be approved by the FEMA Administrator.

In Fiscal Year 2016, DHS is providing $1,037,000,000 to

enhance the ability of states and territories to prevent, protect

against, respond to, and recover from potential terrorist acts

and other hazards.

2 FY 2016 HSGP Fact Sheet

Funding In FY 2016, the total amount of funds under the HSGP is $1,037,000,000. Below is the funding distribution across the three grant programs:

HSGP Programs FY 2016 Allocation State Homeland Security Program $402,000,000 Urban Area Security Initiative $580,000,000 Operation Stonegarden $55,000,000 Total $1,037,000,000

Based upon the requirements of the Homeland Security Act of 2002, as amended, DHS/FEMA continues to inform final grant allocation decisions based upon risk. DHS defines risk as: “potential for an unwanted outcome resulting from an incident, event, or occurrence, as determined by its likelihood and the associated consequences” (see http://www.dhs.gov/xlibrary/assets/dhs-risk-lexicon-2010.pdf). DHS utilizes a comprehensive risk methodology focused on three principal elements:

• Threat • Vulnerability • Consequence

The risk methodology determines the relative risk of terrorism faced by a given area. It takes into account the potential risk of terrorism to people, critical infrastructure, and economic security. The threat analysis continues to account for threats from domestic violent extremists as well as international terrorist groups and those individuals inspired by terrorists abroad.

SHSP Allocations FY 2016 SHSP funds are allocated based on two factors: minimum amounts as legislatively mandated, and DHS’s risk methodology. Each state and territory receives a minimum allocation under SHSP using the thresholds established in the Homeland Security Act of 2002, as amended. All 50 states, the District of Columbia, and Puerto Rico receive 0.35 percent of the total funds allocated for grants under Section 2003 and Section 2004 of the Homeland Security Act of 2002. Four territories (American Samoa, Guam, the Northern Mariana Islands, and the U.S. Virgin Islands) receive a minimum allocation of 0.08 percent of the total funds allocated for grants under Section 2003 and 2004 of the Homeland Security Act of 2002. For details on program-specific funding amounts, refer to the FY 2016 HSGP NOFO. UASI Allocations In the Explanatory Statement accompanying the FY 2016 Appropriation, Congress expressed its intent that the Secretary fund up to eighty-five percent (85%) of nationwide risk in the UASI program. In accordance with that intent, the Secretary designated twenty-nine (29) urban areas eligible for funding under UASI program. This is an increase from the twenty-eight (28) urban areas eligible in FY 2015.

3 FY 2016 HSGP Fact Sheet

FY 2016 UASI funds are allocated based on DHS’s risk methodology and anticipated effectiveness of proposed projects. The anticipated effectiveness is assessed based on the applicant’s description of how the proposed projects, as outlined in the IJ, align with the urban area THIRA. The twenty-nine (29) eligible urban areas for the FY 2016 UASI program are determined through an analysis of relative risk of terrorism faced by the 100 most populous metropolitan statistical areas (MSA) in the United States, in accordance with the Homeland Security Act of 2002, as amended. Detailed information on MSAs is publicly available from the United States Census Bureau at http://www.census.gov/population/www/metroareas/metrodef.html. For details on program-specific funding amounts, refer to the FY 2016 HSGP NOFO. OPSG Allocations The FY 2016 OPSG risk assessment is designed to identify the risk to border security and to assist with the distribution of funds for the grant program. Funding under OPSG is distributed based on the risk to the security of the border. The risk model used to allocate OPSG funds considers the potential risk that certain threats pose to border security and estimates the relative risk faced by a given area. In evaluating risk, DHS considers the populations in a particular area that could be at risk, the concentration of people in the area, and specific characteristics of their location that might contribute to risk, such as intelligence community assessments of threat and the potential impacts that the threats pose to the security of the border area. For vulnerability and consequence, DHS/FEMA considers the expected impact and consequences of successful border events occurring in specific areas. Eligibility All 56 states and territories, which includes any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, and the Northern Mariana Islands, are eligible to apply for SHSP funds. For those states that are eligible for UASI and OPSG funding, the State Administrative Agency (SAA) is the only entity eligible to submit applications to DHS/FEMA on behalf of UASI and OPSG applicants. Eligible high-risk urban areas for the FY 2016 UASI program have been determined through an analysis of relative risk of terrorism faced by the 100 most populous metropolitan statistical areas (MSAs) in the United States. Eligible sub-recipients under the FY 2016 OPSG Program are local units of government at the county level and federally-recognized tribal governments in states bordering Canada, states bordering Mexico, and states and territories with international water borders. All applicants must have active ongoing United States Border Patrol (USBP) operations coordinated through a USBP sector office to be eligible for OPSG funding. Eligible states and territories with a county or similar level of government structure are authorized to accept applications on behalf of the alternative unit of local government. States in this situation must advise DHS/FEMA in writing as to their intent to apply.

4 FY 2016 HSGP Fact Sheet

Other Eligibility Requirements

Emergency Operation Plan (EOP) Recipients must update their EOP at least once every two years to comply with Comprehensive Preparedness Guide (CPG) 101 Version 2.0, Developing and Maintaining Emergency Operations Plans. Recipients will use the Unified Reporting Tool (URT) to report their compliance with this reporting requirement. State Preparedness Report (SPR) The SPR is an annual capability assessment. Sec. 652(c) of the Post-Katrina Emergency Management Reform Act of 2006 (Pub. L. No. 109-295) requires an SPR from any state or territory receiving federal preparedness assistance administered by DHS/FEMA. Each state submits an SPR to DHS/FEMA. Refer to the FY 2016 HSGP NOFO for additional guidance on SPR requirements. Threat and Hazard Identification and Risk Assessment (THIRA) States and territories should review and, if necessary, revise and update the THIRA on an annual basis. Urban Areas should also review and, if necessary, revise and update the THIRA on an annual basis. A single THIRA submission will support multiple grant awards received by a jurisdiction. This submission is valid for the entire period of performance of the individual grant award(s). Further details on the THIRA as it relates to HSGP requirements can be found in the FY 2016 HSGP NOFO. For additional guidance on THIRA, please refer to CPG 201, Second Edition, available at www.fema.gov/plan.

National Incident Management System (NIMS) Implementation Prior to allocation of any federal preparedness awards in FY 2016, recipients must ensure and maintain adoption and implementation of NIMS. Emergency management and incident response activities require carefully managed resources (personnel, teams, facilities, equipment, and/or supplies) to meet incident needs. Although state, local, tribal, territorial, and private sector partners—including nongovernmental organizations—are not required to credential their personnel in accordance with these guidelines, DHS/FEMA strongly encourages them to do so in order to leverage the federal investment in the Federal Information Processing Standards (FIPS) 201 infrastructure and to facilitate interoperability for personnel deployed outside their home jurisdiction. Additional information on resource management and NIMS resource typing definitions and job titles/position qualifications is available under https://www.fema.gov/national-incident-management-system. Information regarding credentialing for personnel can be found at (NIMS Guideline for Credentialing of Personnel) http://www.fema.gov/pdf/emergency/nims/nims_alert_cred_guideline.pdf. Funding Guidelines For FY 2016 HSGP, allowable investments made in support of the HSGP priorities as well as other capability-enhancing projects must fall into the categories of planning, organization, equipment, training, or exercises. The period of performance for HSGP is thirty-six (36) months. For

5 FY 2016 HSGP Fact Sheet

additional information regarding allowable costs, including management and administration costs, please refer to the FY 2016 HSGP NOFO.

Application Process and Evaluation Criteria Review Criteria Prior to making a federal award, the federal awarding agency is required by 31 U.S.C. 3321 and 41 U.S.C. 2313 to review information available through any Office of Management and Budget-designated repositories of government-wide eligibility qualification or financial integrity information. Therefore application evaluation criteria may include the following risk based considerations of the applicant: (1) financial stability; (2) quality of management systems and ability to meet management standards; (3) history of performance in managing federal award; (4) reports and findings from audits; and (5) ability to effectively implement statutory, regulatory, or other requirements. FY 2016 HSGP applications are evaluated through a review process for completeness, adherence to programmatic guidelines, and anticipated effectiveness of the proposed investments. Applicants are required to align all projects to at least one core capability identified in the Goal. Descriptions of projects should be clear and concise and should include whether the project supports a NIMS typed resource and whether assets are deployable/shareable. The grant funded activities of every project must align to the HSGP solution areas: Planning, Organization, Exercises, Training and/or Equipment. A project may have activities in more than one solution area. Grant projects must be: 1) both feasible and effective at reducing the risks for which the project was designed; and 2) able to be fully completed within the 3-year period of performance. FEMA uses the information provided in the application and after the submission of the first Biannual Strategy Implementation Report, to determine the feasibility and effectiveness of the grant project. Information that assists in the feasibility and effectiveness determination includes the following:

• Scope of work (purpose and objectives of the project, identification of what is being protected, identification of core capability addressed and whether the core capability is identified in the SPR, where applicable, as a priority);

• Desired outcomes, including expected long-term impact where applicable, and discussion of which core capability gap it helps to close and how;

• Summary of status of planning and design accomplished to date (e.g. included in a capital improvement plan); and

• Project schedule.

Recipients are expected to conform, as applicable, with accepted engineering practices, established codes, standards, modeling techniques, and best practices.

6 FY 2016 HSGP Fact Sheet

Review and Selection Process

SHSP and UASI To ensure the effectiveness of proposed investments and projects, all applications undergo a federal review. The federal review is conducted by FEMA Headquarters (HQ) Program Analysts. HQ Program Analysts use a checklist to verify compliance with all administrative and eligibility criteria identified in the NOFO. Additionally using previously submitted SPR data, HQ Program Analysts verify alignment of the proposed investments and projects to gaps identified through the THIRA/SPR process and national priorities identified in the National Preparedness Report. IJs are reviewed at both the investment and project level. The IJ receives either an approval or conditional approval. Those IJs that are conditionally approved must be revised and must receive final approval prior to access to full funding.

Fusion Center investments are jointly reviewed by FEMA and the DHS Office of Intelligence and Analysis for compliance with FY 2016 HSGP NOFO requirements to prioritize the alignment of requests with results from the annual Fusion Center Assessment Program. Investments that do not meet the requirements will be revised by the recipient and must receive approval prior to accessing funds allocated to fusion center activities.

OPSG Applications are reviewed by the SAA and USBP Sector Headquarters for completeness and adherence to programmatic guidelines and evaluated for anticipated feasibility, need, and impact of the Operations Orders.

FEMA verifies compliance with all administrative and eligibility criteria identified in the FY 2016 HSGP NOFO and requires submission of Operations Orders and Inventory of Operations Orders by the established due dates. FEMA and USBP use the results of both the risk analysis and the federal review by FEMA to make recommendations for funding to the Secretary of Homeland Security.

FY 2016 OPSG funds are allocated competitively based on risk-based prioritization using the USBP Sector-specific border risk methodology described above. Final funding allocation is determined by the Secretary, who may consider information and input from various law enforcement offices or subject matter experts within the Department. Factors considered include, but are not limited to: threat, vulnerability, miles of border, and other border-specific law enforcement intelligence, as well as feasibility of FY 2016 Operation Orders to designated localities within Border States and territories.

HSGP Resources There are a variety of resources available to address programmatic, technical, and financial questions, which can assist with HSGP.

• The FY 2016 HSGP NOFO is located online at: http://www.fema.gov/grants as well as on http://www.grants.gov.

7 FY 2016 HSGP Fact Sheet

• For additional program-specific information, please contact the Centralized Scheduling and Information Desk (CSID) help line at (800) 368-6498 or AskCSID@dhs.gov. CSID hours of operation are from 9:00 a.m. to 5:00 p.m. EDT, Monday through Friday.

• For financial-related questions, including pre- and post-award administration and technical assistance, applicants may contact the DHS/FEMA Grant Programs Directorate Call Center at (866) 927-5646 or via e-mail to ASK-GMD@dhs.gov.

8 FY 2016 HSGP Fact Sheet

FY 2016 SHSP Allocations

State/Territory FY 2016 Allocation State/Territory FY 2016

Allocation Alabama $3,734,500 Montana $3,734,500 Alaska $3,734,500 Nebraska $3,734,500 American Samoa $854,000 Nevada $3,734,500 Arizona $4,568,000 New Hampshire $3,734,500 Arkansas $3,734,500 New Jersey $8,354,000 California $60,178,500 New Mexico $3,734,500 Colorado $3,979,000 New York $76,949,000 Connecticut $3,978,000 North Carolina $5,489,000 Delaware $3,734,500 North Dakota $3,734,500 District of Columbia $4,141,500 Northern Mariana $854,000 Florida $11,040,500 Ohio $7,698,000 Georgia $6,807,000 Oklahoma $3,734,500 Guam $854,000 Oregon $3,837,000 Hawaii $3,734,500 Pennsylvania $10,054,500 Idaho $3,734,500 Puerto Rico $3,734,500 Illinois $16,408,500 Rhode Island $3,734,500 Indiana $3,978,000 South Carolina $3,734,500 Iowa $3,734,500 South Dakota $3,734,500 Kansas $3,734,500 Tennessee $3,978,000 Kentucky $3,978,000 Texas $21,498,000 Louisiana $3,978,000 U.S. Virgin Islands $854,000 Maine $3,734,500 Utah $3,734,500 Maryland $6,153,500 Vermont $3,734,500 Massachusetts $5,645,000 Virginia $7,445,500 Michigan $6,658,000 Washington $6,493,000 Minnesota $3,978,000 West Virginia $3,734,500 Mississippi $3,734,500 Wisconsin $3,978,000 Missouri $3,978,000 Wyoming $3,734,500 Total $402,000,000

9 FY 2016 HSGP Fact Sheet

FY 2016 UASI Allocations

State/Territory Funded Urban Area FY 2016 UASI Allocation

Arizona Phoenix Area $5,430,000

California

Anaheim/Santa Ana Area $5,430,000 Bay Area $28,036,000 Los Angeles/Long Beach Area $68,610,000

Riverside Area $2,962,000 Sacramento Area $2,962,000 San Diego Area $16,658,000

Colorado Denver Area $2,962,000 District of Columbia National Capital Region $53,309,000

Florida Miami/Fort Lauderdale Area $5,430,000

Tampa Area $2,962,000 Georgia Atlanta Area $5,430,000 Illinois Chicago Area $68,610,000 Maryland Baltimore Area $2,962,000 Massachusetts Boston Area $17,770,000 Michigan Detroit Area $5,430,000 Minnesota Twin Cities Area $5,430,000 Missouri St. Louis Area $2,962,000 Nevada Las Vegas Area $2,962,000 New Jersey Jersey City/Newark Area $20,534,000 New York New York City Area $178,623,000 North Carolina Charlotte Area $2,962,000 Ohio Cleveland Area $2,962,000 Oregon Portland Area $2,962,000

Pennsylvania Philadelphia Area $18,263,000 Pittsburgh Area $2,962,000

Texas Dallas/Fort Worth/Arlington Area $15,302,000

Houston Area $23,693,000 Washington Seattle Area $5,430,000 Total $580,000,000

10 FY 2016 HSGP Fact Sheet

FY 2016 OPSG Eligible States and Territories

States and Territories Alabama Massachusetts Pennsylvania Alaska Michigan Rhode Island Arizona Minnesota South Carolina California Mississippi Texas Connecticut Montana Vermont Delaware New Hampshire Virginia Florida New Jersey Washington Georgia New Mexico Wisconsin Hawaii New York Puerto Rico Idaho North Carolina U.S. Virgin Islands Louisiana North Dakota American Samoa Maine Ohio Guam Maryland Oregon Northern Mariana Islands

Note: Not all applicants are guaranteed to receive funding under the FY 2016 OPSG.

1 FY 2016 THSGP Fact Sheet

Fiscal Year 2016 Tribal Homeland Security Grant Program Overview As appropriated by the Department of Homeland Security (DHS) Appropriations Act, 2016 (Pub. L. No. 114-113); and authorized by the Homeland Security Act of 2002, as amended (Pub. L. No. 107-296), the Fiscal Year (FY) 2016 Tribal Homeland Security Grant Program (THSGP) provides funding to eligible tribes to strengthen their capacity to prevent, protect against, mitigate, respond to, and recover from potential terrorist attacks and other hazards. The FY 2016 THSGP plays an important role in the implementation of the National Preparedness System by supporting the building, sustainment, and delivery of core capabilities essential to achieving the National Preparedness Goal (the Goal) of a secure and resilient Nation. Delivering core capabilities requires the combined effort of the whole community, rather than the exclusive effort of any single organization or level of government. The FY 2016 THSGP’s allowable costs support efforts to build and sustain core capabilities across the prevention, protection, mitigation, response, and recovery mission areas.

Funding In FY 2016, the total amount of funds under the THSGP, as a carveout of the FY 2016 State Homeland Security Program (SHSP), is $10,000,000. FY 2016 THSGP funds are allocated based on tribal eligibility per the Homeland Security Act of 2002, as amended (self-certified), and the effectiveness of the applicant’s THSGP Investment Justification (IJ), as determined through a peer review process.

Eligibility In order to be eligible to receive THSGP funding, recipients must be considered “directly eligible tribes.” Per 6 U.S.C. § 601(4), the term “directly eligible tribe” means – (A) any Indian Tribe –

(i) that is located in the continental United States; (ii) that operates a law enforcement or emergency response agency with the capacity to

respond to calls for law enforcement or emergency services; (iii)

In Fiscal Year 2016, DHS is

providing $10,000,000 to enhance the ability of tribal nations to

prevent, protect against, respond to, and recover from potential

terrorist attacks and other hazards

2 FY 2016 THSGP Fact Sheet

a. that is located on or near (50 miles) an international border or a coastline bordering an ocean (including the Gulf of Mexico) or international waters;

b. that is located within 10 miles of a system or asset included on the prioritized critical infrastructure list established under section 210E(a)(2) [of the Homeland Security Act of 2002, as amended] or has such a system or asset within its territory;

c. that is located within or contiguous to one of the 50 most populous metropolitan statistical areas in the United States; or

d. the jurisdiction of which includes not less than 1,000 square miles of Indian country, as that term is defined in section 1151 of title 18, United States Code; and

(iv) that certifies to the Secretary that a State has not provided funds under section 2003 [UASI] or 2004 [SHSP] of [the Homeland Security Act of 2002, as amended] to the Indian Tribe or consortium of Indian Tribes for the purpose for which direct funding is sought; and

(B) a consortium of Indian tribes, if each tribe satisfies the requirements of subparagraph (A). In summary, eligible tribes must meet the requirements set forth in (A) (i), and (A) (ii), and (A) (iv). Tribes must also meet one of the requirements set forth in (A) (iii); either (A) (iii) (a), or (A) (iii) (b), or (A) (iii) (c), or (A) (iii) (d). Finally, (B) may also be satisfied, if each Tribe satisfies the requirements of subparagraph (A). Pursuant to 6 U.S.C. § 606(h), a directly eligible tribe applying for a grant shall designate an individual to serve as a Tribal Liaison with DHS and other state, territorial, local, and regional government officials. Funding Guidelines FY 2016 THSGP funds may be used for a variety of planning activities, organizational activities, equipment purchases, training, exercises, personnel activities, and maintenance and sustainment (including maintenance contracts, repair and replacement costs, upgrades, user fees, and implementation). Additionally, a maximum of five percent (5%) of funds awarded may be retained by the tribal recipient for Management and Administration (M&A) purposes associated with the grant award. The period of performance for the THSGP is thirty-six (36) months.

Application Process and Evaluation Criteria FY 2016 THSGP applications will be evaluated through a three part review and selection process: 1. Applications will first be reviewed by a Headquarters (HQ) Program Analyst to ensure the applicant meets all eligibility requirements; 2. Those eligible applications will then be reviewed through a peer review process, in which proposed investments will be individually scored; 3. The top scoring investments will then be reviewed through a financial risk assessment process conducted by FEMA HQ Grants Management Specialists.

3 FY 2016 THSGP Fact Sheet

To determine eligibility, the HQ Program Analyst reviews submitted applications for completeness. Completeness is determined by the HQ Program Analyst by confirming: The applicant has submitted the self-certification form stating the tribe’s eligibility per the Homeland Security Act of 2002, as amended; The information provided in the self-certification form will be verified by the HQ Program Analyst (PA) assigned to that tribe; The programmatic allowability of the activities under each investment; The application meets all of the administrative criteria identified in this NOFO, to include the required submission of an Investment Justification (IJ) by the established due dates. A panel of peer reviewers analyze and score the investments from all applications that the HQ Program Analysts determine to be complete and eligible. The peer reviewers analyze and score the anticipated effectiveness of each individual proposed investment. Effectiveness is determined based on completeness and adherence to programmatic guidelines. Peer reviewers score each investment individually using six questions to assess how well the investments satisfy the four criteria sections in the Investment Justification template: Overview, Baseline, Project Management and Milestones, and Accomplishments and Impact.

The questions the reviewers score are:

A. Overview Section of Investment • How well are the activities of the Investment described, including any activities

that include planning, organization, equipment, training, and/or exercises? B. Baseline Section of Investment

• How well does this Investment identify existing capability levels and address capability gaps?

C. Project Management and Milestones Section of Investment • How well does the Investment support the selected National Preparedness Goal

core capabilities? • Does the budget narrative provide a clear explanation of how funds demonstrate

the need to achieve the outcomes described? • Do the projects/activities demonstrate progress towards achieving the

Investment? D. Accomplishments and Impact Section of Investment

• Do the outcome(s) demonstrate progress towards building the capability gap(s) identified in the Investment?

Each of the six questions that the reviewers score is worth a maximum of 5 points each. Using their subject matter expertise, the peer reviewer provides a score of 1-5 for each question. Each investment is reviewed by no less than 2 peer reviewers, who use the following scoring scale to assess how well the information provided in each investment answers the question being scored:

• 1 = Little to None • 2 = Inadequate • 3 = Adequate

4 FY 2016 THSGP Fact Sheet

• 4 = Substantial • 5 = Strong

To calculate the final score for each proposed investment, the scores from the six investment questions are first normalized by taking the sum of the 6 scores, dividing this number by 5, and multiplying by 100. For example, if an investment received the following scores for the six questions:

Question 1: 2 Question 2: 3 Question 3: 5 Question 4: 5 Question 5: 3 Question 6: 5

The sum of the scores is 23 (the average score is 3.8). The average score, 3.8 is then divided by 5 with the result multiplied by 100. The normalized score is 76.67. The investment’s final score is determined by averaging the normalized scores from all reviewers of that investment. Applicants who have not received funding in prior years receive five (5) points for each proposed investment that is added to the normalized score for each Investment submitted.

THSGP Resources There are a variety of resources available to address programmatic, technical, and financial questions, which can assist with the THSGP.

• The FY 2016 THSGP Notice of Funding Opportunity. A copy is located online at:

http://www.fema.gov/grants as well as on http://www.grants.gov. • For additional program-specific information, please contact the Centralized Scheduling and

Information Desk (CSID) help line at (800) 368-6498 or AskCSID@dhs.gov. CSID hours of operation are from 9:00 a.m. to 5:00 p.m. EDT, Monday through Friday.

• For financial-related questions, including pre-and post-award administration and technical assistance, applicants may contact the FEMA Grant Programs Directorate Call Center at (866) 927-5646 or via e-mail to ASK-GMD@dhs.gov.

1 FY 2016 NSGP Fact Sheet

Fiscal Year 2016 Nonprofit Security Grant Program Overview As appropriated by the Department of Homeland Security Appropriations Act, 2016 (Pub. L. No. 114-113) and as authorized by Section 2003 of the Homeland Security Act of 2002, (Pub. L. No. 107-296), as amended; the Department of Homeland Security’s (DHS) Fiscal Year (FY) 2016 Nonprofit Security Grant Program (NSGP) provides funding support for target hardening and other physical security enhancements and activities to nonprofit organizations that are at high risk of a terrorist attack. The program is also designed to promote coordination and collaboration in emergency preparedness activities among public and private community representatives, as well as state and local government agencies. The FY 2016 NSGP plays an important role in the implementation of the National Preparedness System by supporting the building, sustainment, and delivery of core capabilities essential to achieving the National Preparedness Goal (the Goal) of a secure and resilient Nation. Delivering core capabilities requires the combined effort of the whole community, rather than the exclusive effort of any single organization or level of government. The FY 2016 NSGP supports core capabilities across the five mission areas of Prevention, Protection, Mitigation, Response, and Recovery based on allowable costs.

Funding In FY 2016, the total amount of funds under this grant program is $20,000,000. Each nonprofit organization applies through the State Administrative Agency (SAA) for up to a $75,000 grant award.

Eligibility The SAA is the only entity eligible to apply for FY 2016 NSGP funds on behalf of eligible nonprofit organizations which have been determined to be at high risk of terrorist attack. Eligible nonprofit organizations are those organizations described under section 501(c)(3) of the Internal Revenue Code of 1986, Title 26 of the U.S.C., and exempt from tax under section 501(a) of such Code. Eligible nonprofits must be located within one of the FY 2016 Urban Area Security Initiative-designated urban areas, listed in Appendix A of the FY 2016 NSGP Notice of Funding Opportunity (NOFO).

In FY 2016, DHS is providing $20,000,000 for target hardening

activities to nonprofit organizations that are at high risk

of a terrorist attack and located within one of the specific UASI-

designated urban areas.

2 FY 2016 NSGP Fact Sheet

Funding Guidelines FY 2016 NSGP allowable costs are primarily focused on target hardening activities. Thus, funding can be used for the acquisition and installation of security equipment on real property (including buildings and improvements) owned or leased by the nonprofit organization, specifically in prevention of and/or protection against the risk of a terrorist attack. This equipment is limited to two categories of items on the Authorized Equipment List (AEL): Physical Security Enhancement Equipment (Category 14) and Inspection and Screening Systems (Category 15). Certain costs for training of security personnel are also permitted. Allowable training topics are limited to the protection of critical infrastructure and key resources, including physical and cyber security, target hardening, and terrorism awareness/employee preparedness. Training conducted using NSGP funds must address a specific threat and/or vulnerability, as identified in the nonprofit organization’s investment justification (IJ). State Management &Administration (M&A): The NSGP is a sub-component of the Urban Area Security Initiative (UASI) program and states must ensure that one-hundred percent (100%) of each individual NSGP award is passed through to the nonprofit organizations allocated funding by DHS/Federal Emergency Management Agency (FEMA). The state may use UASI funding for M&A purposes associated with administering the NSGP award. However, the state’s overall M&A withholding for the NSGP and UASI programs may not exceed five percent (5%) of the sum total of the state’s combined UASI and NSGP awards. Nonprofit M&A: Nonprofit organizations that receive an award under this program may use up to five percent (5%) of their FY 2016 NSGP funds for M&A purposes associated with the award. The period of performance for the NSGP is thirty-six (36) months.

Application Process and Evaluation Criteria Applications are reviewed through a two-phased state and federal review process for completeness, adherence to programmatic guidelines, feasibility, and how well the IJ (project description and justification) addressed the identified risk. FY 2016 NSGP evaluation criteria includes:

• Verification that the nonprofit organization is located within one of the FY 2016 UASI-designated urban areas;

• Identification and substantiation of prior threats or attacks (from within or outside the United States) by a terrorist organization, network, or cell against the applicant based on their ideology, beliefs, or mission;

• Symbolic value of the site(s) as a highly recognized regional and/or national or historical institution(s) that renders the site a possible target of terrorism;

• Role of the applicant nonprofit organization in responding to terrorist attacks; • Findings from previously conducted threat and/or vulnerability assessments; • Integration of nonprofit preparedness with broader state and local preparedness efforts;

3 FY 2016 NSGP Fact Sheet

• Complete, feasible IJs that address an identified risk, including threat and vulnerability, and that build or sustain a core capability identified in the Goal;

• History of prior year funding under NSGP; and • Subject matter expertise to determine feasibility of proposed projects.

NSGP Resources There are a variety of resources available to address programmatic, technical, and financial questions, which can assist with NSGP.

• The FY 2016 NSGP NOFO is located online at: http://www.fema.gov/grants as well as on

http://www.grants.gov. • For additional program-specific information, please contact the Centralized Scheduling and

Information Desk (CSID) help line at (800) 368-6498 or AskCSID@dhs.gov. CSID hours of operation are from 9:00 a.m. to 5:00 p.m. EDT, Monday through Friday.

• For financial-related questions, including pre- and post-award administration and technical assistance, applicants may contact the DHS/FEMA Grant Programs Directorate Call Center at (866) 927-5646 or via e-mail to ASK-GMD@dhs.gov.

FY 2016 EMPG Fact Sheet

1

Fiscal Year 2016 Emergency Management Performance Grant Program Overview As appropriated by the Department of Homeland Security Appropriations Act, 2016, (Pub. L. No. 114-113) and as authorized by the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) (42 U.S.C. § 5121 et seq.) and Section 662 of the Post Katrina Emergency Management Reform Act (6 U.S.C. § 762), the Fiscal Year (FY) 2016 Emergency Management Performance Grant (EMPG) Program provides resources to assist state, local, tribal, and territorial governments in preparing for all hazards. The EMPG Program plays an important role in the implementation of the National Preparedness System. The program supports the building, sustainment, and delivery of core capabilities essential to achieving the National Preparedness Goal of a secure and resilient nation. Delivering core capabilities requires the combined effort of the whole community, rather than the exclusive effort of any single organization or level of government. The EMPG Program’s allowable costs support efforts to build and sustain core capabilities across the Prevention, Protection, Mitigation, Response, and Recovery mission areas. Title VI of the Stafford Act authorizes the Federal Emergency Management Agency (FEMA) to make grants for the purpose of providing a system of emergency preparedness for the protection of life and property in the United States. Emergency preparedness is a shared responsibility between the Federal Government and state, local, tribal and territorial governments across the Nation. Through the EMPG Program, the Federal Government provides coordination, guidance, and assistance to support a comprehensive emergency preparedness system to address all hazards.

In Fiscal Year 2016, DHS is providing $350,100,000 to enhance

the ability of state, local, tribal, and territorial governments to

prevent, protect against, mitigate, respond to and recover from

potential terrorist acts and other hazards.

Funding In FY 2016, the EMPG Program provides $350,100,000 to assist state, local, tribal, and territorial governments in preparing for all hazards, as authorized by the Stafford Act. This total funding amount includes $100,000 from the Disaster Relief Fund, which FEMA must make available to the Federated States of Micronesia and the Republic of the Marshall Islands pursuant to Article X of the Federal Programs and Services Agreement of the Compact of Free Association Act (Pub. L. No. 108-188).

FY 2016 EMPG Fact Sheet 2

All 50 states, the District of Columbia, and Puerto Rico receive a base amount of 0.75 percent of the total available grant funding. Four territories (American Samoa, Guam, Northern Mariana Islands, and the U.S. Virgin Islands) receive a base amount of 0.25 percent of the total available grant funding. The balance of EMPG Program funds is distributed based on population. Eligibility All 56 states and territories, as well as the Republic of the Marshall Islands and the Federated States of Micronesia, are eligible to apply for FY 2016 EMPG Program funds. Either the State Administrative Agency or the state’s emergency management agency are eligible to apply directly to FEMA for EMPG Program funds on behalf of state, local and tribal emergency management agencies, however, only one application is accepted from each state or territory.

Funding Guidelines The FY 2016 EMPG Program focuses on planning, operations, equipment acquisitions, training, exercises, construction, and renovation to enhance and sustain the all-hazards core capabilities of state, local, tribal and territorial governments. The period of performance for the EMPG Program is 24 months from October 1, 2015 to September 30, 2017.

A cost match is required under this program. The federal share shall not exceed 50 percent of the total budget. The state must equally match (cash or in-kind) the federal contribution pursuant to Sections 611(j) and 613 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Pub. L. No. 93-288), as amended, (42 U.S.C. §§ 5121-5207). Unless otherwise authorized by law, federal funds cannot be matched with other federal funds. In accordance with 48 U.S.C. § 1469a, match requirements are waived for insular areas, including American Samoa, Guam, the U.S. Virgin Islands, the Federated States of Micronesia, the Northern Mariana Islands, and the Republic of the Marshall Islands.

Additionally, up to five percent of the funding awarded can be used for management and administration purposes associated with the grant award. If the State Administrative Agency is not the state’s emergency management agency, the SAA is not eligible to retain funds for management and administration costs. For more information about funding guidelines, please see the FY 2016 EMPG Notice of Funding Opportunity. Application Process and Evaluation Criteria Applications must be submitted no later than March 18, 2016. To access the application, first visit www.grants.gov, and then complete the full application at ND Grants. Each FEMA regional office will be responsible for reviewing their respective states’ and territories’ FY 2016 EMPG application and work plan. The regional offices will assess each state and territory’s emergency management sustainment and enhancement efforts, as well as the linkage to the core capabilities identified in the National Preparedness Goal.

FY 2016 EMPG Fact Sheet 3

Additional guidance and application kits are available at www.fema.gov/grants as well as the Notice of Funding Opportunity.

1 FY 2016 PSGP Fact Sheet

Fiscal Year 2016 Port Security Grant Program Overview As appropriated by the Department of Homeland Security Appropriations Act, 2016 (Pub. L. No. 114-113); and as authorized by Section 102 of the Maritime Transportation Security Act of 2002, as amended, (Pub. L. No. 107-295) (46 U.S.C. § 70107); the Port Security Grant Program (PSGP) is one of the Department of Homeland Security’s (DHS) grant programs that directly support maritime transportation infrastructure security activities. The PSGP is one tool in the comprehensive set of measures authorized by Congress and implemented by the Administration to strengthen the Nation’s critical infrastructure against risks associated with potential terrorist attacks. The FY 2016 PSGP provides funds for transportation infrastructure security activities to implement Area Maritime Security Plans and facility security plans among port authorities, facility operators, and state and local government agencies required to provide port security services. The FY 2016 PSGP plays an important role in the implementation of the National Preparedness System by supporting the building, sustainment, and delivery of core capabilities essential to achieving the National Preparedness Goal (the Goal) of a secure and resilient Nation. The FY 2016 PSGP’s allowable costs support efforts to build and sustain core capabilities across the prevention, protection, mitigation, response, and recovery mission areas.

Funding In FY 2016, the total amount of funds under this grant program is $100,000,000. The FY 2016 PSGP is focused on supporting increased port-wide maritime security risk management; enhancing maritime domain awareness; supporting maritime security training and exercises; and maintaining or reestablishing maritime security mitigation protocols that support port recovery and resiliency capabilities. PSGP investments must address U.S. Coast Guard (USCG) and Area Maritime Security Committee (AMSC) identified vulnerabilities in port security.

In FY 2016, DHS is providing

$100,000,000 to promote sustainable, risk-based efforts to

protect critical port infrastructure from terrorism.

2 FY 2016 PSGP Fact Sheet

Eligibility The following entities are encouraged to participate in the FY 2016 PSGP:

• Owners or operators of Federally-regulated terminals, facilities, U.S. inspected passenger vessels or ferries as defined in the Maritime Transportation Security Act (MTSA) and Title 33 of the Code of Federal Regulations (C.F.R.) Parts 101, 104, 105, and 106.

• Members of an AMSC, per 33 C.F.R. Part 103, who are recognized as such by the USCG Captain of the Port (COTP), and are required to provide port security services. Specifically, eligible applicants include port authorities, port police, local law enforcement agencies, port and local fire departments, and facility fire brigades that have jurisdictional authority to respond to incidents in the port.

Certain ferry systems are eligible for FY 2016 Transit Security Grant Program (TSGP) funds. However, any ferry system receiving funds under the FY 2016 TSGP is not eligible to participate under the FY 2016 PSGP. Likewise, any ferry system participating in the PSGP is not eligible for funding under the TSGP.

Funding Guidelines The FY 2016 PSGP focuses on enhancing Maritime Domain Awareness (MDA); port resilience and recovery capabilities; training and exercises; cybersecurity; enhancing Improvised Explosive Device (IED) and Chemical, Biological, Radiological, Nuclear, Explosive (CBRNE) prevention, protection, mitigation, response, and recovery capabilities; and Transportation Worker Identification Credential (TWIC) Implementation. A maximum of five percent (5%) of PSGP funds awarded may be retainable by recipients for Management and Administration (M&A) associated with the grant award. The period of performance for the PSGP is thirty-six (36) months.

Application Process and Evaluation Criteria The Federal Emergency Management Agency (FEMA) conducts an initial review of all FY 2016 PSGP applications for completeness. Field-level reviews are conducted by the respective COTP in coordination with the Director of the U.S. Department of Transportation’s Maritime Administration’s Gateway Office and appropriate personnel from the AMSC, as identified by the COTP. Field review project scores and prioritized lists are submitted to FEMA for the national review process. The National Review Panel (NRP) convenes with subject matter experts from DHS and other Federal partners to identify a final, prioritized list of eligible projects for funding. The NRP conducts an initial review of the prioritized project listings for each port area submitted by the USCG’s COTP to ensure that the proposed projects accomplish intended risk mitigation goals. The NRP validates and normalizes the Field Review COTP Project Priority List and provides a master list of prioritized projects by port area to FEMA. A risk-based algorithm is applied to the NRP’s validation and prioritized lists for each port area in all groups. FEMA evaluates and validates the

3 FY 2016 PSGP Fact Sheet

consolidated and ranked project list resulting from the application of the algorithm and submits the recommendations to the Secretary of Homeland Security for final approval. PSGP Program Resources There are a variety of resources available to address programmatic, technical, and financial questions, which can assist with the PSGP.

• The FY 2016 PSGP Notice of Funding Opportunity is located online at: http://www.fema.gov/grants as well as on http://www.grants.gov.

• For additional program-specific information, please contact the Centralized Scheduling and Information Desk (CSID) help line at (800) 368-6498 or AskCSID@dhs.gov. CSID hours of operation are from 9:00 a.m. to 5:00 p.m. EDT, Monday through Friday.

• For financial-related questions, including pre- and post-award budget administration and technical assistance, applicants may contact the DHS/FEMA Grant Programs Directorate Call Center at (866) 927-5646 or via e-mail to ASK-GMD@dhs.gov

1 FY 2016 TSGP Fact Sheet

Fiscal Year 2016 Transit Security Grant Program Overview As appropriated by the Department of Homeland Security Appropriations Act, 2016 (Pub. L. No. 114-113) and authorized by Section 1406 of the Implementing Recommendations of the 9/11 Commission Act of 2007, (Pub. L. No 110-53) (6 U.S.C. 1135), the Fiscal Year (FY) 2016 Transit Security Grant Program (TSGP) is one of the Department of Homeland Security’s (DHS) grant programs that directly support transportation infrastructure security activities. The FY 2016 TSGP provides funds to owners and operators of transit systems (which include intra-city bus, commuter bus, ferries, and all forms of passenger rail) to protect and increase the resilience of critical surface transportation infrastructure and the traveling public from acts of terrorism. The FY 2016 TSGP is one tool in the comprehensive set of measures authorized by Congress and implemented by the Administration to strengthen the Nation’s critical infrastructure against risks associated with potential terrorist attacks. The TSGP plays an important role in the implementation of the National Preparedness System by supporting the building, sustainment, and delivery of core capabilities essential to achieving the National Preparedness Goal (the Goal) of a secure and resilient Nation. Delivering core capabilities requires the combined effort of the whole community, rather than the exclusive effort of any single organization or level of government. The FY 2016 TSGP’s allowable costs support efforts to build and sustain core capabilities across the prevention, protection, mitigation, response, and recovery mission areas.

Funding In FY 2016, the total amount of funds available under this grant program is $87,000,000. FY 2016 TSGP funds are awarded to support the creation of sustainable, risk-based efforts to protect critical surface transportation infrastructure and the traveling public from acts of terrorism, major disasters, and other emergencies.

Eligibility Eligible transit agencies are determined based on daily unlinked passenger trips (ridership) and transit systems that serve historically eligible Urban Area Security Initiative (UASI) jurisdictions. Certain ferry systems are eligible to participate in the FY 2016 TSGP. Ferry systems that elect to participate under the FY 2016 TSGP are not considered for funding under the FY 2016 Port Security

In Fiscal Year 2016, DHS is

providing $87,000,000 to promote sustainable, risk-based efforts to

protect critical transportation infrastructure and the traveling public from acts of terrorism.

2 FY 2016 TSGP Fact Sheet

Grant Program (PSGP). Likewise, any ferry system that elects to participate in the FY 2016 PSGP is not considered for funding under the FY 2016 TSGP.

Funding Guidelines The FY 2016 TSGP focuses on operational activities, operational packages, and capital projects including Top Transit Asset List (TTAL) and critical infrastructure vulnerability remediation. The period of performance for the TSGP is thirty-six (36) months.

Application Process and Evaluation Criteria TSGP applications are reviewed by representatives from the Federal Emergency Management Agency (FEMA), DHS Office of Infrastructure Protection (IP), Transportation Security Administration (TSA), and Federal Transit Administration (FTA). Panelists review applications and, where possible, score applications independently before joint panel deliberations. During panel sessions, panelists discuss projects and agree on individual final scores, comments, and recommend funding levels. The panel provides funding recommendations to an Executive Committee made up of FEMA and TSA leadership. This committee makes recommendations to the Secretary of Homeland Security, who reviews the recommendations and makes final award decisions.

TSGP Resources A variety of resources are available to address programmatic, technical, and financial questions, which can assist with the TSGP, including:

• The FY 2016 TSGP Notice of Funding Opportunity is located online at: http://www.fema.gov/grants as well as on http://www.grants.gov.

• For additional program-specific information, applicants may contact the Centralized Scheduling and Information Desk (CSID) help line at (800) 368-6498 or AskCSID@dhs.gov. CSID hours of operation are from 9:00 a.m. to 5:00 p.m. EDT, Monday through Friday.

For financial-related questions, including pre- and post-award administration and technical assistance, applicants may contact the FEMA Grant Programs Directorate Call Center at (866) 927-5646 or via e-mail to ASK-GMD@dhs.gov.

1 FY 2016 IPR Fact Sheet

Fiscal Year 2016 Intercity Passenger Rail Program Overview As appropriated by the Department of Homeland Security Appropriations Act, 2016 (Pub. L. No. 114-113) and as authorized by Section 1513 of the Implementing Recommendations of the 9/11 Commission Act of 2007 (9/11 Act), (Pub. L. No. 110-53) (6 U.S.C. § 1163); the Fiscal Year (FY) 2016 Intercity Passenger Rail (IPR) Program is one of the Department of Homeland Security’s (DHS) grant programs which directly support transportation infrastructure security activities. This grant program is part of a comprehensive set of measures authorized by Congress and implemented by the Administration to help strengthen the Nation’s critical infrastructure against risks associated with potential terrorist attacks. The IPR Program provides funding to Amtrak to protect critical surface transportation infrastructure and the traveling public from acts of terrorism and to increase the resilience of the Amtrak rail system. The FY 2016 IPR Program plays an important role in the implementation of the National Preparedness System by supporting the building, sustainment, and delivery of core capabilities essential to achieving the National Preparedness Goal (the Goal) of a secure and resilient Nation. Delivering core capabilities requires the combined effort of the whole community, rather than the exclusive effort of any single organization or level of government. The FY 2016 IPR Program supports core capabilities across the five mission areas of Prevention, Protection, Mitigation, Response, and Recovery based on allowable costs.

Funding In FY 2016, the total amount of funds distributed under this grant program is $10,000,000. FY 2016 IPR funds are awarded to support the creation of sustainable, risk-based efforts to protect critical surface transportation infrastructure and the traveling public from acts of terrorism, major disasters, and other emergencies.

In accordance with the 9/11 Act, all funds awarded to Amtrak under this program are transferred to the Department of Transportation Federal Railroad Administration (DOT/FRA) within five (5) business days of award for disbursal.

In Fiscal Year 2016, DHS is

providing $10,000,000 to promote sustainable, risk-based efforts to

protect critical transportation infrastructure and the traveling

public from acts of terrorism

2 FY 2016 IPR Fact Sheet

Eligibility Amtrak is the only agency eligible to apply for the FY 2016 IPR Program funds.

Funding Guidelines The FY 2016 IPR Program focuses on operational activities, operational packages, and remediation of high risk/high consequence intercity passenger rail assets. The recipient may use up to five percent (5%) for Management and Administration (M&A) purposes. The period of performance for the IPR Program is thirty-six (36) months.

Application Process and Evaluation Criteria The IPR Program reviewer pool consists of representatives from the Federal Emergency Management Agency (FEMA), Transportation Security Administration (TSA), and the Federal Railroad Administration (FRA). As part of the cooperative agreement process, Amtrak meets with FEMA, TSA, and FRA representatives to develop Investment Justifications (IJs) that align with the IPR Program priorities and the funding allocation. Final project reviews and project funding recommendations are approved by FEMA and TSA.

IPR Program Resources There are a variety of resources available to address programmatic, technical, and financial questions, which can assist with the IPR Program.

• The FY 2016 IPR Notice of Funding Opportunity is located online at: http://www.fema.gov/grants as well as on http://www.grants.gov.

• For additional program-specific information, please contact the Centralized Scheduling and Information Desk (CSID) help line at (800) 368-6498 or AskCSID@dhs.gov. CSID hours of operation are from 9:00 a.m. to 5:00 p.m. EDT, Monday through Friday.

• For financial-related questions, including pre- and post-award administration and budgetary assistance, applicants may contact the FEMA Grant Programs Directorate Call Center at (866) 927-5646 or via e-mail to ASK-GMD@dhs.gov.

1 FY 2016 IBSGP Fact Sheet

Fiscal Year 2016 Intercity Bus Security Grant Program Overview As appropriated by the Department of Homeland Security Appropriations Act, 2016 (Pub. L. No. 114-113) and as authorized by Section 1531 of the Implementing Recommendations of the 9/11 Commission Act of 2007 (9/11 Act) (Pub. L. No. 110-53) (6 U.S.C. § 118); the Fiscal Year (FY) 2016 Intercity Bus Security Grant Program (IBSGP) is one of the Department of Homeland Security’s (DHS) grant programs that directly support transportation infrastructure security activities. This grant program is part of a comprehensive set of measures authorized by Congress and implemented by the Administration to strengthen the Nation’s critical infrastructure against risks associated with potential terrorist attacks. FY 2016 IBSGP provides funds to owners and operators of intercity bus systems to protect critical surface transportation infrastructure and the traveling public from acts of terrorism and to increase the resilience of transit infrastructure. The IBSGP plays an important role in the implementation of the National Preparedness System by supporting the building, sustainment, and delivery of core capabilities essential to achieving the National Preparedness Goal (the Goal) of a secure and resilient Nation. Delivering core capabilities requires the combined effort of the whole community, rather than the exclusive effort of any single organization or level of government. The FY 2016 IBSGP supports core capabilities across the five mission areas of Prevention, Protection, Mitigation, Response, and Recovery based on allowable costs.

Funding In FY 2016, the total amount of funds distributed under this grant program is $3,000,000. FY 2016 IBSGP funds are awarded to support the creation of a sustainable program for the protection of intercity bus systems and the traveling public from terrorism.

Eligibility Eligible applicants under the FY 2016 IBSGP are private operators providing transportation by an over-the-road bus that have completed a vulnerability assessment and developed a security plan that the Secretary of Homeland Security has approved as described in Section 1531 of the 9/11 Act. Eligibility for funding is limited to applicants that meet one or both of the following criteria:

• Operate fixed-route intercity bus transportation providing services to a FY 2016 Urban Area Security Initiative (UASI)-designated jurisdiction.

In Fiscal Year 2016, DHS is providing $3,000,000 to promote sustainable, risk-based efforts to protect intercity bus systems and

the traveling public from terrorism.

2 FY 2016 IBSGP Fact Sheet

• Operate a charter bus service using over-the-road buses and provide a minimum of 50 trips annually to one or more FY 2016 UASI-designated jurisdictions.

Funding Guidelines FY 2016 IBSGP allowable costs are focused on intercity bus initiatives that strengthen emergency operations planning and citizen protection capabilities and help address security priorities. Eligible activities include, but are not limited to:

• Operating and capital costs associated with over-the-road bus security awareness,

preparedness and response training, including training for front-line employees for potential security threats and conditions (must be DHS-approved training courses);

• Live or simulated exercises for the purpose of assessing and improving the capabilities of entities to prevent, prepare for, mitigate against, respond to, and recover from acts of terrorism (must be DHS-approved exercises);

• Public awareness campaigns for enhanced over-the-road bus security (must be DHS-approved);

• Modifying over-the-road buses to increase their security; • Installing cameras and video surveillance equipment on over-the-road buses and at

terminals, garages, and over-the-road bus facilities; • Hardening and modifying terminals, garages and facilities, including terminals and other

over-the-road bus facilities owned by state or local governments, to increase their security.

The period of performance for the IBSGP is thirty-six (36) months from the date of award. For additional information regarding allowable costs, including management and administration costs, refer to the FY 2016 IBSGP Notice of Funding Opportunity (NOFO).

Application Process and Evaluation Criteria FY 2016 IBSGP applicants compete for funds irrespective of their size and without the use of a tier system. Recipients are selected through a competitive process based on the ratings of the National Review Panel (NRP). Applicants submit an Investment Justification (IJ) that provides evidence of how the project fits into an overall effort to meet critical infrastructure security requirements, and how the investment provides significant security impact. The FY 2016 IBSGP uses a risk-based prioritization consistent with DHS policy. The DHS/Federal Emergency Management Agency (FEMA), in conjunction with the DHS/Transportation Security Administration (TSA), verifies compliance with each of the administrative and eligibility criteria identified in the guidance. Eligible applications are reviewed and scored by the NRP, which includes representatives from DHS/TSA, Federal Motor Carrier Safety Administration (FMCSA), and DHS/FEMA. DHS/FEMA and DHS/TSA then reviews the NRP recommendations and makes recommendations for funding to the Secretary of DHS.

3 FY 2016 IBSGP Fact Sheet

IBSGP Resources A variety of resources are available to address programmatic, technical, and financial questions, which can assist with IBSGP, including:

• The FY 2016 IBSGP NOFO is located online at: http://www.fema.gov/grants as well as on

http://www.grants.gov. • For additional program-specific information, applicants may contact the Centralized

Scheduling and Information Desk (CSID) help line at (800) 368-6498 or AskCSID@dhs.gov. CSID hours of operation are from 9:00 a.m. to 5:00 p.m. EDT, Monday through Friday.

• For financial-related questions, including pre- and post-award administration and technical assistance, applicants may contact the DHS/FEMA Grant Programs Directorate Call Center at (866) 927-5646 or via e-mail to ASK-GMD@dhs.gov.